AndM.P.Nos.1 v. The Secretary

The State of Tamil Nadu,Represented by its Secretary to Government,Health and Family Welfare Department,Fort St. George,Chennai – 600 009... R.2 in WP 2267, 3792, 3985 & 5078 of 2009W.P.Nos.2089, 3100 and 3101 of 2009:Writ petitions filed under Article 226 of the Constitution ofIndia, praying for the issue of Writs of Mandamus, directing therespondents to include the Medical Officers serving in Governmentof India Institutions in Tamil Nadu and Public Sector Undertakingsor Organisations under the control of Government of Tamil Nadu orGovernment of India in Tamil Nadu as service candidates in GeneralInstructions No.51 given in the Prospectus 2009-2010 issued forselection of Post Graduate Degree/Diploma/MDS 5 years M.Ch. (NeuroSurgery) Courses so as to enable the petitioners to be selectedunder 25% service quota.W.P.No.2267 of 2009:Writ petition filed under Article 226 of the Constitution ofIndia, praying for the issue of a Writ of Declaration, declaringthat the deletion of the Medical Officers working in 1) TheGovernment of India Institutions in Tamil Nadu and 2) Public SectorUndertakings/Organisations under the control of Government of TamilNadu/Government of India in Tamil Nadu from the list of eligibleMedical Officers for being considered as service candidates for theselection and admission to the PG Courses in the Government MedicalColleges in the Prospectus 2009-2010 of the first respondent asillegal, arbitrary and violative of Article 14 of the Constitutionof India and consequently direct the respondents to consider thepetitioners who fail under the above two deleted categories ofMedical Officers as service candidates for the selection andadmission to the Post Graduate (PG) Degree/Diploma/5 years M.Ch.(Neuro Surgery) Courses in Tamil Nadu Government Medical Collegesfor the year 2009-2010 and subsequent years in so far as thepetitioners are concerned.W.P.No.3792 of 2009:Writ petition filed under Article 226 of the Constitution ofIndia, praying for the issue of a Writ of Declaration, declaringClause 51 of the Prospectus for admission to Post Graduate Degreefor the academic year 2009-2010 in so far as it discriminates thepetitioner and other similarly situated persons working in theMedical Service of Central Government and other statutory bodieswith that of the candidates serving in Tamil Nadu Medical Serviceand local bodies of Tamil Nadu is ultra vires to Articles 14, 15and 19 of the Constitution of India, consequently directing thefirst respondent herein to admit the petitioner in accordance withthe merit of the petitioner under the service category belonging toother Backward Classes in the counselling to be conducted in themonth of April 2009. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.3985 of 2009:Writ petition filed under Article 226 of the Constitution ofIndia, praying for the issue of a Writ of Certiorarified Mandamus,calling for the records pertaining to the Prospectus issued by thefirst respondent for the Entrance Examination for admission to thePost Graduate (PG) Degree/Diploma/MDS/5 years M.Ch. (Neuro Surgery)Courses in Tamil Nadu Government Medical Colleges for the year2009-2010 and quash the same in so far as it pertains to thecriteria for awarding additional marks for rural service under thehead EXPERIENCE for drawing up the merit lits for the admission tothe PG Course in the State of Tamil Nadu for the service quotaunder the heading MERIT LIST and consequently direct therespondents to treat the petitioner working in ESI Centre equal tothat of the candidates working in PHC's for awarding marks foradmission to PG Course under the heading EXPERIENCE.W.P.No.5078 of 2009:Writ petition filed under Article 226 of the Constitution ofIndia, praying for the issue of a Writ of Certiorarified Mandamus,calling for the records pertaining to the Prospectus issued by thefirst respondent for the Entrance Examination for admission to thePost Graduate (PG) Degree/Diploma/MDS/5 years M.Ch. (Neuro Surgery)Courses in Tamil Nadu Government Medical Colleges for the year2009-2010 and quash the same in so far as it pertains to thecriteria for awarding marks under the head EXPERIENCE for ruralservice and hilly area service in drawing up the merit list for theadmission to the PG Course in the State of Tamil Nadu for theservice quota under the heading MERIT LIST and consequently directthe respondents to fill the service candidates only within the 50%seats that are reserved for service quota for the Post GraduateCourses to that the petitioner who is a non-service candidates willavail the benefit of getting a seat in the remaining 50% seats inthe PG Course.For Petitioner in WP 2089/2009: Mr.R.Muthukumaraswamy, Senior Counsel for Mr.K.Kalyana Sundaram.For Petitioner in WPs 3100 & 3101/2009 : Mr.S.KasirajanFor Petitioner in WP 3792/2009 : Mr.K.M.Vijayan, Senior Counsel for M/s.La Law.For Petitioner in WPs 5078, 3985 & 2267/2009 : Mrs.Kavitha DeenadayalanFor Respondents in all WPs : Mr.G.Sankaran, Special Government Pleader (Education) Assisted by Mrs.E.Ranganayaki, Government Advocate (Education) https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E RAdmission to Post Graduate Medical Courses, without fail, hasbeen the subject matter of litigation year after year, under onepretext or the other and the batch of cases on hand belongs to thesame genre. 2. For the first time, the Government of Tamil Nadu introduceda reservation of 50% of seats in Post Graduate Medical Courses, forin-service candidates in the academic year 1999-2000. Thestipulation was challenged in a batch of writ petitions, whicheventually landed up in the Supreme Court. The reservation wasupheld by the Supreme Court in K.Duraisamy vs. State of Tamil Nadu{2001 (2) SCC 538}. Therefore, the said pattern is in vogue in theState of Tamil Nadu since then. 3. However, until the last academic year {2008-2009}, severalcategories of employees came under the quota meant for servicecandidates as seen from Clauses 54.b and 55 of the Prospectus foradmission to Post Graduate Diploma/Degree/MDS/5 Year M.Ch. {NeuroSurgery Courses} for the year 2008-2009. They read as follows:-"54.b. 50% of seats in each branch and in eachcollege are reserved for service candidates, in additionto those service candidates selected in the opencategory. In case of an odd number of vacancy, thevacant seats shall be filled up by consideration ofmerit among both Service and Non-Service candidates puttogether. The seats in MD/MS/5 year M.Ch. (NeuroSurgery)/MDS in the following specialities will beexclusively reserved for service candidates:-Non-ClinicalClinical1) MD Pathology1) MD Psychiatric Medicine2) MD Physiology2) MD Radio Diagnosis3) MD Bio-Chemistry3) MD Radiotherapy4) MD Microbiology4) MD Anaesthesia5) MD Forensic Medicine5) MD TB & Chest Diseases6) MD Pharmacology6) 5 year M.Ch. (Neuro 7) DMRD8) MS Anatomy8) DMRT"MDS1) Community Dentistry""55. The following categories of Medical Officerswill be treated as Service Candidates for the purpose ofallotment of seats.1. Medical Officers selected by the TNPSC andappointed in Tamil Nadu Medical Services on regularbasis, who have put in minimum of Three Years continuous https://hcservices.ecourts.gov.in/hcservices/ service as on 31.3.2008. This is subject to the finalverdict of the Supreme Court of India in the SLPNo.2229/2005 filed by this Government against the orderspassed by the Bench of the High Court of Madras dated23.12.2004 in W.A.No.2091/2004 etc.2. Medical Officers who are approved probationersand who have put in minimum of Three Years of continuousservice as on 31.3.2008. This is subject to the finalverdict of the Supreme Court of India in the SLPNo.2229/2005 filed by this Government against the orderspassed by the Bench of the High Court of Madras dated23.12.2004 in W.A.No.2091/2004 etc.3. Medical Officers serving (for three years) in:-(a) Local Bodies in Tamil Nadu (Except MedicalOfficers working in Panchayat Union part time or fulltime as the case may be, who have to be treated as Non-Service Candidates).(b) Government of India Institutions in Tamil Nadu.(c) Public Sector Undertakings or Organisationsunder the control of Government of Tamil Nadu orGovernment of India in Tamil Nadu.This is subject to the final verdict of the SupremeCourt of India in the SLP No.2229/2005 filed by thisGovernment against the orders passed by the Bench of theHigh Court of Madras dated 23.12.2004 inW.A.No.2091/2004 etc."4. But in the Prospectus for admission to the very sameCourses for the year 2009-2010, a restricted meaning was given tothe expression "service candidates" under Clause 51 of theProspectus. It will be useful to extract Clauses 54.b and 51 of theProspectus for 2009-2010 as they correspond to Clauses 54.b and 55of the Prospectus for 2008-2009. They are as follows:-"54.b. 50% of seats in each branch are reserved forservice candidates, in addition to those servicecandidates selected in the open category. In case of anodd number of vacancy that vacant seat shall be filledup by consideration of merit among Service candidatesonly.""51. The following categories of Medical Officerswill be treated as Service Candidates for the purpose ofallotment of seats.1. Medical Officers selected by the TNPSC andappointed in Tamil Nadu Medical Services on regularbasis, who have put in minimum of two years ofcontinuous service as on 31.3.2009. https://hcservices.ecourts.gov.in/hcservices/

2. Medical Officers serving (for two years) inLocal Bodies of Tamil Nadu."5. Aggrieved by such a restriction imposed upon the expression"service candidates", a few candidates working as Medical Officersin Institutions such as Ordnance Factory, Tiruchirapalli,Employees' State Insurance Corporation Hospitals, CentralGovernment Health Scheme Hospitals, Railway Hospital and TuticorinPort Trust Hospital, have come up with the writ petitionsW.P.Nos.2089, 2267, 3100, 3101 and 3792 of 2009, seeking either adirection to treat the Medical Officers serving in the hospitals ofthe Government of India, Public Sector Undertakings etc., asservice candidates entitled to compete under the 50% quota or adeclaration that the restriction of the benefit only to thoseserving in the hospitals of the Government of Tamil Nadu or localbodies as ultra vires Article 14 of the Constitution. Thepetitioners in these five writ petitions are on common ground. 6. The petitioner in W.P.No.3985 of 2009 is a candidate towhom the benefit of the quota applies. Therefore, he is notaggrieved by the restriction of the benefit only to the employeesserving in the hospitals of the Government of Tamil Nadu and thelocal bodies. But he is aggrieved by the stipulation contained inthe Prospectus for the award of additional marks for rural service.7. In contrast to the other writ petitions, the petitioner inW.P.No.5078 of 2009 does not claim to be employed in any hospitalof the Central Government or State Government or any Public SectorUndertaking. Therefore he has not challenged either theprescription of 50% quota for in-service candidates or therestriction now imposed in the current academic year. However, heis aggrieved by the award of marks for services rendered in ruralareas and hill areas under the caption "Experience" in theProspectus. 8. Thus, in effect, we have on hand, 3 sets of writ petitionsviz., (i) a batch of 5 writ petitions in which, the petitionersworking in the hospitals of the Central Government and PublicSector Undertakings, seek the continuation of the benefit of thequota reserved for in-service candidates that they have enjoyedtill last year (ii) one writ petition by an in-service candidatechallenging the award of marks for service in rural areas and (iii)one writ petition by an unemployed (or perhaps privately employed)candidate challenging the award of marks for service in rural areasand hill areas. 9. Since the counselling for in-service candidates is slatedto begin from 1.4.2009, all the writ petitions were taken up fordisposal, by the consent of parties and I have heard Mr.K.M.Vijayanand Mr.R.Muthukumaraswamy, learned Senior Counsel,and Ms.KavithaDeenadayalan, learned counsel appearing for the petitioners andMr.G. Sankaran, learned Special Government Pleader (Education).10. As stated earlier, the vires of the very quota reservedfor in-service candidates, for admission to Post Graduate MedicalCourses, has already been upheld by the Apex Court in K.Duraisamy's https://hcservices.ecourts.gov.in/hcservices/ case. The ratio laid down in K.Duraisamy's case, was encapsulisedby the Supreme Court in paragraph-19 of its decision in State ofM.P. And Others Vs. Gopal D. Tirthani and Others {2003 (7) SCC 83}as follows:-"(i) the Government possesses the right andauthority to decide from what sources theadmissions in educational institutions or toparticular disciplines and courses therein have tobe made and that too in what proportion;(ii) that such allocation of seats in the formof fixation of quota is not to be equated with theusual form of communal reservation and, therefore,the constitutional and legal considerationsrelevant to communal reservations are out of placewhile deciding the case based on such allocation ofseats;(iii) that such exclusive allocation andstipulation of a definite quota or number of seatsbetween in-service and non-service or privatecandidates provided two separate channels of entryand a candidate belonging to one exclusive quotacannot claim to steal a march into anotherexclusive quota by advancing a claim based onmerit. Inter se merit of the candidates in eachquota shall be determined based on the meritperformance of the candidates belonging to thatquota;(iv) that the mere use of the word"reservation' per se is not decisive of the natureof allocation. Whether it is a reservation or anallocation of seats for the purpose of providingtwo separate and exclusive sources of entry woulddepend on the purpose and object with which theexpression has been used and that would bedeterminative of the meaning, content and purportof the expression. Where the scheme envisages not amere reservation but is one for classification ofthe sources from which admissions are to beaccorded, fixation of respective quota for suchclassified groups does not attract applicability ofconsiderations relevant to reservationsimpliciter."11. In AIIMS Students' Union Vs. AIIMS {2002 (1) SCC 428},the Supreme Court considered the decision in K.Duraisamy's case andstated in paragraph-31 as follows:-"Permitting in-service candidates to dopostgraduation by opening a separate channel foradmittance would enable their continuance inGovernment Service after postgraduation whichwould enrich health services of the nation. https://hcservices.ecourts.gov.in/hcservices/ Candidates in open category having qualified inpostgraduation may not necessarily feel attractedto public services. Providing two sources ofentry at the postgraduation level in a certainproportion between in-service candidates andother candidates thus achieves the laudableobject of making available better doctors both inpublic sector and as private practitioners. Theobject sought to be achieved is to benefit twosegments of the same society by enriching both atthe end and not so much as to provide protectionand encouragement to one at the entry level."12. Therefore the classification made between in-servicecandidates and other candidates cannot be questioned anymore sincethe issue is no longer res integra. However, the dispute now raisedis as to whether a further classification between persons in theservices of the State Government and those in other public services(such as Central Government, Port Trust, ESI, Railway Hospitals)would stand the test of reasonableness within the meaning ofArticle 14. 13. In State of M.P. Vs. Gopal D. Tirthani {2003 (7) SCC 83},arising out of the reservation of 20% of seats for admission toPost Graduate Medical Courses to in-service candidates, the SupremeCourt reiterated, in paragraph-21 of its judgment, as to when thetest of reasonable classification would be satisfied, on thefollowing lines:-"21. To withstand the test of reasonableclassification within the meaning of Article 14 ofthe Constitution, it is well settled that theclassification must satisfy the twin tests: (i) itmust be founded on an intelligible differentiawhich distinguishes persons or things placed in agroup from those left out or placed not in thegroup, and (ii) the differentia must have arational relation with the object sought to beachieved. It is permissible to use territories orthe nature of the objects or occupations or thelike as the basis for classification. So long asthere is a nexus between the basis ofclassification and the object sought to beachieved, the classification is valid."Therefore what is to be seen in the present batch of cases iswhether those twin tests are satisfied or not. 14. There may not be any difficulty in concluding that theclassification now made, would pass the first test. Until lastyear, the following persons were considered under the category ofservice candidates:-(i) Medical Officers selected by the Tamil Nadu Public ServiceCommission and appointed to the Tamil Nadu Medical Services onregular basis, who have put in 3 years of continuous service. https://hcservices.ecourts.gov.in/hcservices/ (ii) Medical Officers serving for 3 years in local bodies inTamil Nadu except those working in Panchayat Unions on part time orfull time basis.(iii) Medical Officers serving for 3 years in Government ofIndia Institutions in Tamil Nadu.(iv) Medical Officers serving for 3 years in Public SectorUndertakings or Organisations under the control of the Governmentof Tamil Nadu or Government of India in Tamil Nadu.15. But by the Prospectus in question, only the MedicalOfficers selected by Tamil Nadu Public Service Commission andappointed to the Tamil Nadu Medical Services on regular basis, whohave put in a minimum of 2 years of continuous service and thoseMedical Officers serving for 2 years in local bodies of Tamil Nadualone are sought to be treated as service candidates. In otherwords, a distinction is now sought to be made between those servingin Tamil Nadu Medical Services and in the services of the localbodies in Tamil Nadu on the one hand and those not employed inthese services. This distinction is founded on intelligibledifferentia and hence it passes the first test of reasonableness. 16. However Mr.K.M.Vijayan, learned Senior Counsel contendedthat the word "service" appearing in the Prospectus has a largerconnotation in the context of the constitutional provisions andthat the word "State" cannot also be understood to mean the "StateGovernment", in view of Article 12 of the Constitution. 17. But I am unable to countenance the above submission. InClause 54.b of the Prospectus of the previous years, it was statedthat 50% of seats will be reserved for "service candidates". Thecategories of Medical Officers who would be treated as servicecandidates, were enlisted in Clause 55 of the Prospectus of theprevious years. Even until last year, the expressions "servicecandidates" and "State" were not understood in the context ofArticle 12 of the Constitution. These expressions were given onlyrestricted meanings even in the previous years, in the sense thatall persons employed in Government Service (State or Central) werenot treated as service candidates till last year. It was only thosewho were serving in the State of Tamil Nadu in any of the hospitalsof the Central Government, State Government, Public SectorUndertakings/ Organisations and local bodies, that were treated asservice candidates. Medical Officers serving outside Tamil Nadu, inthe hospitals of Central Government or Public SectorUndertakings/Organisations, were not treated as service candidates.A geographical restriction was imposed even among those serving inthe Central Government or Public Sector Undertakings, to beeligible for the benefit of the quota till last year. In otherwords, a person working in the hospital of the ESI Corporation,when posted within the State of Tamil Nadu was made eligible forthe quota until last year, though another Medical Officer workingin the hospital of the same Corporation posted outside Tamil Nadu,was made ineligible. Such a differentia has already attained theseal of approval from the Apex Court. Therefore, it is not now https://hcservices.ecourts.gov.in/hcservices/ permissible to import the meaning of these words from theprovisions of the Constitution. That an Institution which may betreated as a "State" for the purpose of Article 12, need notnecessarily be identified with or treated as "the State Government"is made clear by the Apex Court in State of Assam Vs. BarakUpatyaka D.U. Karmachari Sanstha {JT 2009 (4) SC 127}. The word"State" appearing in Article 12 of the Constitution has a differentconnotation from the same word appearing in Article 309, since thelatter is primarily concerned with public services and posts inconnection with the affairs of the Union or of the States. If thedistinction made between two persons serving in the sameInstitution, say Railway Hospital or ESI Hospital, on the basis oftheir place of posting {Tamil Nadu and elsewhere}, is treated asintelligible differentia, there is no reason as to why, thedistinction between a person working in the State Services and aperson working in other services cannot pass the test ofintelligible differentia. After all, the distinction sought to bemade must be real and existential. Once it is real and existential,it would pass the first test.18. In support of his contention that the classification willnot satisfy the first test, Mr.R.Muthukumaraswamy, learned SeniorCounsel for the petitioners relied upon a decision of the SupremeCourt in Deepak Sibal Vs. Punjab University and Another {1989 (1)U.J. (SC) 512}. In paragraph-14 of the said decision, the SupremeCourt held that the exclusion of the employees of privateestablishments will not satisfy the test of intelligibledifferentia that distinguishes the employees of GovernmentInstitutions. But the said case arose out of a rule introduced bythe Department of Law of the Punjab University, restricting theadmission to the evening classes of the Three year LLB degree, onlyto regular employees of the Government/Semi GovernmentInstitutions. Persons in private employment were totally barredfrom applying for the evening Law Degree Course. Thus it was a caseof 100% reservation of admission to evening Law Degree Course, toState Government employees. The University sought to explain it asintelligible differentia by contending that the State Governmentemployees have no opportunity to attend the day college. But theApex court pointed out that even private employees suffer the samekind of disadvantage. It is in such a context that the SupremeCourt said that there was no intelligible differentia between thetwo categories of employees. Therefore the said decision is of noassistance. 19. Coming to the second test relating to the nexus with theobject sought to be achieved, it is seen from paragraph-3 of thecommon counter affidavit filed by the respondents that therespondents seek to justify the classification as reasonable, onthe basis of certain facts and figures. Upto the year 2005-2006,the State was required to surrender 25% of the total number ofseats for the All India Quota. But from the year 2005-2006, it wasincreased to 50%. The total number of seats available in PostGraduate Degree/Diploma Courses in all the Government Institutionsin the State of Tamil Nadu is stated to be 909. Therefore onlyabout 450 seats are available to be filled up by the StateGovernment, out of which half the number of seats would go to the https://hcservices.ecourts.gov.in/hcservices/ open category and the remaining half {namely about 225 seats} aloneare available under the quota reserved for service candidates. 20. In paragraphs-5 and 6 of the common counter affidavit, itis stated by the respondents that there are 15 Government MedicalColleges in the State of Tamil Nadu and the Government had alreadysanctioned 4 new Medical Colleges for the academic year 2009-2010at Perambalur, Sivaganga, Tiruvarur and Villupuram. In order to beable to get recognition and affiliation for a Medical College,there is a requirement to have 45 Professors and 150 AssistantProfessors qualified with a Post Graduate Degree/Diploma, forteaching Undergraduate Courses. According to the respondents, thereis a severe dearth of Medical Officers holding a Post GraduateDegree/Diploma in the State, which has made it impossible for theState to increase the number of seats in Institutions which arealready in existence for several decades. 21. In paragraph-7 of the counter affidavit, it is stated thatthere are about 30 District Headquarters Hospitals and 160 TalukHospitals that are Secondary Health Care Centres, where theservices of Medical Officers with Post Graduate Degrees/Diplomasare required, to enable the Government to provide quality healthcare to the poor and the needy people of the State. According tothe respondents, there are no Specialists available in theseInstitutions for want of hands, despite the fact that necessaryinfrastructure has already been created. 22. Therefore, according to the respondents, the only way inwhich the Health Care provided to the people of the State can beincreased both quantitatively and qualitatively, is to restrict thequota available for service candidates, only to those MedicalOfficers appointed through Tamil Nadu Public Service Commission tothe Tamil Nadu Medical Services and to those serving in localbodies of the State of Tamil Nadu. 23. Thus, in essence, the object sought to be achieved by theclassification, is to fulfil the health care needs of the people ofthe State. By restricting the benefit of the quota reserved forservice candidates only to those in Tamil Nadu Medical Services orin the services of the local bodies of the State of Tamil Nadu, thesaid object is sought to be achieved. Therefore, in my consideredview, there is certainly a nexus between the classification and theobject sought to be achieved by the classification. 24. As a matter of fact, the Prospectus of yesteryears and theProspectus of the current year contain certain stipulations, whichalso give a hint about the object for which a quota was made in thefirst instance for service candidates. They are as follows:-(i) Clause 21 of the Prospectus for the year 2008-2009 as wellas Clause 8 of the Prospectus for the year 2009-2010, make it clearthat candidates who have already completed a Post Graduate Degreeor candidates who already possess a Post Graduate Degree are noteligible to apply for admission to any other Post GraduateDegree/Diploma Course. This ensures that no seat is ultimatelyrendered a waste, by a Post Graduate Degree holder in one https://hcservices.ecourts.gov.in/hcservices/ speciality, switching over to another speciality.(ii) Clause 57 of the Prospectus for the year 2008-2009, madeit obligatory for candidates serving in Undertakings orOrganisations of the Government of Tamil Nadu or the Government ofIndia in Tamil Nadu, to execute an undertaking and bond that theywill serve the parent Institution for a period of 15 years aftercompleting the Post Graduate Course or upto superannuationwhichever is applicable and that they should produce a Certificateto that effect from their parent Institution at the time ofadmission. Similarly, Clause 64(c) of the Prospectus for the year2008-2009, made it obligatory for the service candidates to executea bond for Rs.5 lakhs and Rs.10 lakhs respectively for PostGraduate Diploma and Degree Courses and Clause 64(d) imposed asimilar obligation upon non-service candidates to execute a bondfor Rs.3 lakhs and Rs.5 lakhs respectively. The bond was in thenature of a security to ensure that the service candidates servethe Government of Tamil Nadu till superannuation and the non-service candidates will serve the Government of Tamil Nadu for aperiod of 2 years, if so required. Similar obligation is imposedupon the service candidates as well as non-service candidates, inthe Prospectus for the year 2009-2010 under Clauses 59 (c) and 59(g) respectively. These Clauses make it clear that the object ofproviding Post Graduate Education in Medicine, at a subsidisedrate, was to ensure that the health care needs of the people of theState are improved with the services to be rendered by thebeneficiaries of such education. (iii) Clause 64 (b) of the Prospectus for the previous yearand Clause 59 (d) of the Prospectus for the current year contain astatement to the effect that the Government of Tamil Nadu wasspending a large amount of money to impart medical education atnominal fees, even while providing stipend to private candidatesand salary to service candidates and that the Government waslooking forward to these Doctors to serve the poor and the needy ofthe country at large and the State in particular.(iv) The Prospectus for the current year {2009-2010} containsan additional stipulation in Clause 59 (d) and (f), which was notfound in the Prospectus of yesteryears. This Clause reads asfollows:-"59 (d) All service candidates of Tamil Naduwho have less than 5 years of service after passingPG Degree/Diploma Courses have to serve theGovernment for a period of 5 years from the date ofpassing the examination irrespective of the date ofsuperannuation, if the Government requires theirservices. They will be paid salary/stipend tillsuperannuation only. They have to furnish anundertaking to this effect at the time of joiningthe course.""54 (f) Both Service and Non-servicecandidates who complete the following scarcespecialities will have to work for a period of 5 https://hcservices.ecourts.gov.in/hcservices/ years after passing the Course, if they attainsuperannuation before completion of Course, if theGovernment requires their services. They shouldalso furnish an undertaking to this effect at thetime of joining the Course."The introduction of the above Clauses for the current year onlysubstantiates the averments contained in the common counteraffidavit that there is a dearth of qualified Medical Officers withPost Graduate Degrees/ Diplomas and that the State is strugglinghard to maintain the balance between the supply and demand.Therefore the classification between persons employed in the TamilNadu Medical Services on the one hand and those employed in CentralGovernment or Public Sector Undertakings even in the State of TamilNadu, certainly has a nexus with the object sought to be achieved.25. Moreover, the respondents have an additional justificationfor the classification that they have made. Apart from executing abond, as per the Clauses contained in the Prospectus referred toabove, the respondents were also having the practice of taking theoriginal MBBS Degree Certificates and other Certificates fromcandidates who are admitted to the Post Graduate Courses. Therespondents were retaining the original Certificates, even afterthe candidates completed the Post Graduate Courses, with a view tobind them to the bond and undertaking executed by them. But most ofthe candidates, whose Certificates were so retained, came up beforethis Court in a batch of writ petitions and this Court allowed allthe writ petitions, directing the respondents to return theoriginal Certificates, but giving liberty to the respondents toenforce the bond, if there was a breach. It is trite to point outthat for enforcing the bond, the Government will have to file suitsagainst these candidates. In any case, the intention of theGovernment is not to recover the bond amount but to make thesecandidates serve in the Government Institutions, after completingthe Post Graduate Courses. Therefore the prescription of a bond andundertaking, has not enabled the Government to realise the objectsought to be fulfilled by the classification that was in existencetill last year. Hence, the Government had to look for anotheralternative to achieve the objective, which has led to this finetuning of the classification. Therefore I am unable to accept thecontention that the classification is violative of Article 14. 26. In fact, the cry of the Government that there is dearth ofqualified hands at the Post Graduate Level, does not appear to be abogey created for the purpose of justifying the classification.There are certain other measures taken by the Government to ensurethat the holders of Post Graduate Medical Degrees/Diplomas renderservices in the State Government till they attain the age ofsuperannuation. To begin with, the Government issued the followingorders, declaring certain categories of employees as scarcecategories and banned the issue of No Objection Certificates foremployment abroad:-1. G.O.(Ms) No.133, Health and Family Welfare Department,dated 17.1.1989. https://hcservices.ecourts.gov.in/hcservices/

2. G.O.(D) No.1265, Health and Family Welfare Department,dated 18.11.2004.3. G.O.(Ms) No.434, Health and Family Welfare Department,dated 10.6.2005.4. G.O.(2D) No.73, Health and Family Welfare Department, dated8.8.2006.5. G.O.(D) No.53, Health and Family Welfare Department, dated23.5.2007.27. The categories of persons who were declared as scarce, bythe above Government Orders, were Medical Officers in thespecialities of Nephrology, Neuro Surgery, Anaesthesia, Oncology,Vascular Surgery, Cardiology, Cardio Thoratic Surgery, Neurology,Radio Diagnosis and Radio Theraphy, Psychiatry, Thoracic Medicine,Geriatrics, Diabetology, Urology, Haematology, Rheumatology,Physical Medicine and all Specialities in MDS on the Clinical sideand Anatomy, Physiology, Pharmacology, Forensic Medicine, CommunityMedicine and Biochemistry on the Non-Clinical side.28. By a subsequent order in G.O.Ms.No.315, Health and FamilyWelfare (B1) Department, dated 31.8.2007, the Government declaredall specialities in Tamil Nadu Medical Services as scarcecategories and directed that the Medical Officers in allspecialities should not be granted "No Objection Certificate" fortaking up employment abroad. 29. Apart from declaring all specialities in Tamil NaduMedical Services to be scarce categories, the Government alsobrought an amendment to Fundamental Rule 56 (3) (f), underG.O.Ms.No.179, Personnel and Administrative Reforms (FR-IV)Department, dated 29.9.2008. This amendment was issued in exerciseof the powers conferred by the proviso to Article 309 and 313 ofthe Constitution and the amendment was given effect retrospectivelyfrom 3.11.2006, the date on which an executive instruction to theeffect was issued by the Government. By the said amendment, aproviso was added after the proviso to FR 56 (3)(f) and it reads asfollows:-"Provided further that the appointingauthority may also withhold the permission forvoluntary retirement sought for by a Governmentservant, if the post held by him has been declaredas "Scarce Category" by the AdministrativeDepartment concerned in Secretariat and whosecontinuation in Government service is absolutelyessential in public interest."30. Therefore, the Medical Officers belonging to specialities,in Tamil Nadu Medical Services, are not even entitled to walk outon voluntary retirement, as of right, even after completing 20/25years of service. Such a restriction, corroborates the stand takenby the Government that there is dearth of hands at the higher leveland that the present classification is aimed at resolving the https://hcservices.ecourts.gov.in/hcservices/ problem to some extent. Therefore, there is a nexus between theclassification and the object sought to be achieved by theclassification. 31. In UPSRTC Vs. U.P. Parivahan Nigam Shishukhs BerozgarSangh {1995 (2) SCC 1}, it was held in paragraph-1 as follows:-"The material resources of this country arelimited. Indeed this is so for every country. Theresource-crunch is, however, acute for us; and sowhenever and wherever public money is invested, ithas to be seen that there is a proper utilisation ofthe same in the sense that the public ultimatelygets benefit of the same."32. The above passage, among other things, was relied upon, bya Division Bench of this Court in M.Elumalai Vs. M. Bhuvaneswari{2007 (3) MLJ 967}, arising out of a challenge to the policy of theGovernment to appoint only those who had studied in GovernmentNursing Colleges as Staff Nurses in the Government Hospitals. Thechallenge was rejected, on the ground that the students ofGovernment Nursing Colleges stand on a different footing from thestudents of Private Nursing Colleges, since the Government wasspending a huge amount of money on the students trained inGovernment Nursing Colleges and that therefore the classificationwas reasonable. Therefore the subsidised higher education inmedicine offered in Government Medical Colleges, provides theGovernment, a justification for expecting the beneficiaries toserve the society at large.33. There can be no doubt about the fact that the StateGovernment will have no control whatsoever, over the MedicalOfficers employed in Central Government or Public SectorUndertakings. Any amount of undertaking given by those MedicalOfficers to their employers, cannot really be enforced by the StateGovernment, due to lack of privity of contract. The StateGovernment may not be able to compel the Central Government or thePublic Sector Undertaking to ensure that those Medical Officers whocomplete Post Graduate Courses continue to serve the CentralGovernment or the Public Sector Undertaking. Even if the StateGovernment succeeds in prevailing upon the Central Government orthe Public Sector Undertaking in ensuring the retention of thoseMedical Officers in service till their superannuation, the StateGovernment cannot compel the Central Government or the PublicSector Undertaking to post those Medical Officers always in theState of Tamil Nadu till their retirement. Medical Officers workingin ESI Corporation, Railways etc., are liable to be transferred toany place in the country. The power of the employer to transferthem cannot be curtailed by the State Government by the undertakingthat they obtain. In other words, the State Government will not beable to ensure that the services of these Medical Officers areavailable to the local population. It is in these circumstancesthat the Government had come up with a new policy in the currentyear to treat only those serving in the Tamil Nadu Medical Servicesand those serving in local bodies in Tamil Nadu as servicecandidates. Therefore it cannot be found fault with. https://hcservices.ecourts.gov.in/hcservices/

34. Lastly Mr.K.M.Vijayan, learned Senior Counsel contendedthat there cannot be a discrimination between one person andanother person within a State, especially when both of them servethe public, through different Institutions run by the State or theCentral Government or Public Sector Undertakings. In support of thesaid contention, the learned Senior Counsel relied upon thedecision of the Constitution Bench of the Supreme Court in A.V.S.Narasimha Rao and Others Vs. The State of Andhra Pradesh {1969 (1)SCC 839}.35. If the above contention is accepted, then the veryclassification between a person in public services in the State anda person in private employment within the State, cannot also beaccepted. But the said classification has received the seal ofapproval in K.Duraisamy's case. Moreover, it is not a case ofdiscrimination between two persons working in the same State. It isa classification made between one person on whose services theState has a control, so as to compel him to serve the people of theState till the age of retirement and another person on whom theState has no such control, though both of them are within the Statefor the present. As stated earlier, the State Government does noteven have a control over the other types of persons to ensure thattheir employers retain them in the State of Tamil Nadu throughouttheir tenure. Therefore, the above argument of the learned SeniorCounsel cannot be accepted.36. As stated earlier, there are two writ petitions, in whicha challenge is made to the allotment of marks for rural service andservice in hill areas. The challenge in one writ petition is by acandidate who comes within the meaning of the expression "servicecandidate". His grievance is that at the time when he was selected for appointment, he was offered a posting in atown, on account of his ranking in the merit list. Persons downbelow in the merit list were posted to rural areas. At the time ofposting, he had no idea that separate marks will be awarded forrural service. Therefore he accepted the posting. But the policy toaward marks for rural service has come as a bolt out of the blue,rewarding the less meritorious, who were allotted to rural service.37. The challenge in the other writ petition is by a candidatewho is not in employment and his challenge is to the award of marksboth for rural service and for service in hill areas. According tothis petitioner, the service candidates who already have thebenefit of quota, will also gain extra marks on account of thesespecial marks and score a march over general category candidateseven in the remaining 50% quota.38. But even at the outset, the contentions of these two writpetitioners are misconceived. The award of marks forexperience/service is subject to a maximum of 10 marks. Clause 45(a) of the Prospectus for the year 2008-2009 reads as follows:-"45(a) One mark for each completed year afterthe completion of CRRI shall be awarded as marks https://hcservices.ecourts.gov.in/hcservices/ for experience for both service/non servicecandidates to a maximum of Ten marks as on31.03.2008. 2 marks will be awarded to eachcompleted year of Government service in hillyareas and it will be awarded to a maximum of 5years i.e., 10 marks for 5 years instead of 5marks in other cases. Altogether the total marksawarded for experience/service will be restrictedto 10 marks to all candidates including candidatesfrom hilly areas.1) Marks awarded for Entrance examination:Maximum 90 marks.2) Experience marks for all candidates: 1mark per year to a maximum of 10 marks.3) Experience marks for candidates from hillyareas: 2 marks per year of service in hilly areasto a maximum of 10 marks for 5 years.b) Fractional values of a year will not becounted for awarding marks for experience andexperience in hilly regions."Clause 41(a) of the Prospectus for the year 2009-2010 reads asfollows:-"41(a) One mark for each completed year afterthe completion of CRRI shall be awarded as marksfor experience for both service/non servicecandidates to a maximum of Ten marks as on31.03.2009. 2 marks will be awarded to eachcompleted year of Government service in hilly areasand it will be awarded to a maximum of 10 marks.Altogether the total marks awarded forexperience/service will be restricted to 10 marksto all candidates including candidates from hillyareas.1) Marks awarded for Entrance examination:Maximum 90 marks.2) Experience marks for all candidates to amaximum of 10:a) One mark per year to a maximum of 10 marks.b) Marks for candidates served in rural andhill areas:-One mark per year of service in ruralareas and two marks per year of service in hillareas limited to a maximum of ten marks.c) Fractional values of a year will not becounted for awarding marks for experience andexperience in rural/hilly regions." https://hcservices.ecourts.gov.in/hcservices/ A reading of the above Clauses would show that the award of marksfor services rendered in rural areas or hill areas, is subject to amaximum of 10 marks. Even non service candidates are entitled to 1mark for each completed year after the completion of CRRI.Therefore the apprehension of the petitioners as though servicecandidates will gain by leaps and bounds, is not well founded,since the award of marks for experience is for the benefit of bothcategories. 39. In any case, the issue is no longer res integra. In Stateof M.P. and Others Vs. Gopal D. Tirthani and Others {2003 (7) SCC83}, the Supreme Court considered, from paragraphs-29 to 33, thequestion as to whether weightage can be given to Doctors for havingrendered specified number of years of service in Rural/Tribalareas. After referring to the decisions in Dinesh Kumar Vs. MotilalNehru Medical College {1986 (3) SCC 727}, Snehalatha Patnaik Vs.State of Orissa {1992 (2) SCC 26} and Narayan Sharma Vs. Dr.PankajKr. Lehkar {2000 (1) SCC 44}, the Court held in paragraph-36.4 asfollows:-"It is permissible to assign a reasonableweightage to services rendered in rural/tribalareas by the in-service candidates for the purposeof determining inter se merit within the class ofin-service candidates who have qualified in thepre-PG test by securing the minimum qualifyingmarks as prescribed by the Medical Council ofIndia."Incidentally, this Madhya Pradesh case arose out of achallenge to a reservation of 20% of the seats in Post GraduateMedical Courses, to the employees of the Government of MadhyaPradesh and the same was upheld. Therefore I see no substance evenin the challenge to the award of marks for rural and hill areaservice. 40. In the result, I find no factual or legal basis to grantthe reliefs sought for in these writ petitions. Hence all the writpetitions are dismissed. No costs. Consequently all themiscellaneous petitions are also dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Svn https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary, Selection Committee, Directorate of Medical Education, No.162, Periyar EVR High Road, Kilpauk, Chennai – 600 010.2.The Directorate of Medical Education, No.162, Periyar EVR High Road, Kilpauk, Chennai – 600 010.3.The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Fort St. George, Chennai – 600 009.+ 1 CC To Mr.K.Kalyanasundaram, Advocate SR NO.11375+ 1 CC To M/s.C.Uma Advocate SR NO.11128+ 1 CC To Mr.P.Duraisamy, Advocate SR NO.11165+ 1 CC To Mr.S.Kasirajan, Advocate SR NO.11166+ 1 CC To M/s.La Law, Advocate SR NO.11327+ 2 CC to the Government Pleader SR NO.11448 &11449 Common Order in W.P.Nos.2089, 2267, 3100, 3101, 3792, 3985 and 5078 of 2009KG {CO}TP/2.4.2009.