Dr.Dhinakar Babu v. State of Tamil Nadu

taken into consideration at the rate of one mark for every yearsubject to the maximum of 10 marks. According to the petitioner, thefirst candidate in M.Ch.(Gastro Enterology) obtained 78 marks in theentrance examination while he got 77.25 marks out of 90 marks. Byvirtue of marks given for experience, he may not be able to getadmission in the merit list for non-service category.7. The writ petitioner in W.P.No.16226 of 2009 has passed hisM.B.B.S. in February 2002 and completed his M.D.(General Medicine) in2004-2007. He applied for admission to D.M.(Cardiology) Super-speciality Course and in the entrance examination, he obtained 78.75marks out of 90 marks. There are six seats in D.M.(Cardiology), outof which three are reserved for service candidates and the remainingthree are reserved for non-service candidates on merit. The servicecandidates are also entitled to compete under merit list which,according to the petitioner, is meant for non-service candidates.According to the petitioner, he remains first by obtaining 78.75 outof 90 marks in the entrance examination. However, by virtue ofaddition of 10 marks against the services rendered by the servicecandidates, he has no chance of being selected.8. The writ petitioner in W.P.No.15355 of 2009 completed hisM.B.B.S. Course and internship in May, 1999 and after completing hisM.D., he was selected by Tamil Nadu Public Service Commission asCivil Assistant Surgeon in 2000 and posted in the Primary HealthCentre, Nachalur and he served in Primary Health Centres from20.4.2000 to 17.7.2003. After rendering rural service for more thanthree years, he applied for admission into postgraduate course in2003 and he was selected for M.S. (General Surgery) and allotted theMedical College, Coimbatore. He completed his M.S. (General Surgery)in the year 2006 and thereafter, he was posted in the GeneralHospital, Kottur where he served from 28.9.2006 to 28.3.2007. 8(a). Thereafter he served as Tutor from 4.4.2007 to 29.4.2009and he is a Senior Resident Medical Officer. He applied for M.Ch.(Genito Urinary Surgery) in 2009-10. He secured 60.75 marks out of90 in the entrance examination. Taking note of his two years serviceafter postgraduate degree, he was awarded 2 marks and totally hesecured 62.75 out of 100. 8(b). It is his case that the services rendered by him in ruralareas for three years before completing postgraduate degree courseshould have been taken into consideration and as per the terms of theprospectus for the year 2009-10, the rural services were omitted tobe taken into consideration for admission to super specialitycourses, while the same was considered for the past 10 years. Out ofseven seats available in the said course, M.Ch.(GUS), three seats arereserved for service candidates and the remaining seats are for non-service candidates. As the rural services rendered by the petitioneris not taken into consideration, he is likely to lose his chance of https://hcservices.ecourts.gov.in/hcservices/ getting admission for M.Ch.(GUS) this year. 9. The writ petitioner in W.P.No.16797 of 2009 completed hisM.B.B.S. in January, 2002 and M.S. (General Surgery) in SriRamachandra Medical College, Chennai in April, 2008. Out of fourseats available in M.Ch. (Neuro Surgery), two seats are earmarked forservice candidates whereas the remaining two seats are for opencategory on merit basis. The petitioner obtained 66.25 marks out of90. The petitioner may not get the chance of admission as in respectof service candidates, marks are being added for their experience. 10. The main ground on which the writ petitions are filed isthat for super speciality courses in medicine, merit alone should bethe criterion. Inasmuch as the second respondent conducted theentrance examination by which the merit is ascertained, the selectionshould only be based on the marks obtained in the entranceexamination and the clause of the prospectus which enables upto 10marks to be given for experience to a candidate after completion ofpostgraduate course in medicine would dilute the merit system. It istheir contention that when the prospectus says that after completionof P.G. Course in medical course, a candidate is entitled for onemark for every year, it would lead to mean that even in case where aperson who has completed postgraduate course and is idle for manyyears, he would be awarded a maximum of 10 marks and he cannot betreated as meritorious. According to the petitioners, in the absenceof proper criteria to decide about the experience, merely giving onemark for every year to all persons after completion of P.G. Coursecannot be termed as a prudent method of ascertaining the merit. 11. It is their further case as it is seen in W.P.No.15355 of2009 that even if experience is taken into account for the purpose ofmerit, the experience obtained in rural service should be taken intoconsideration. It is also their case that when service candidatesare given 50% of total seats, the addition of marks to servicecandidates based on their experience would amount further leniencybeing shown to them, which cannot be treated as a criterion fordeciding the merit. It is the case of the petitioner in W.P.No.15355of 2009 that while awarding marks for experience, the servicerendered by a candidate in rural areas should be taken intoconsideration for the purpose of admission to super specialitymedical courses, but in the present year prospectus, the servicerendered in rural areas is taken into consideration for the admissionto postgraduate courses while the same is dispensed with for superspeciality courses. It is his contention that at the time when heapplied for postgraduate medical course, the rural services renderedby him viz., three years at that time was not taken intoconsideration and even now when he seeks for admission to superspeciality course, the prospectus for the present year turns down hisrequest stating that rural service would be taken only forpostgraduate courses and not for super speciality courses. https://hcservices.ecourts.gov.in/hcservices/

12. In W.P.No.14855 of 2009, the petitioner while impleading theMedical Council of India as third respondent, has also impleaded theservice candidate who got selected by addition of marks forexperience as 4th respondent. Likewise, in W.P.No.16226 of 2009 also,the selected candidate from service category has been impleaded as 4threspondent. In W.P.No.15355 of 2009, the 3rd respondent is theservice candidate who got selected. However, in W.P.No.16797 of2009, no selected candidate has been impleaded as respondent. 13. In all these cases, it is the case of the SelectionCommittee as well as the Government that in the prospectus for theyear 2009-10 for super speciality courses examinations, there is aspecific clause stating that out of 100 marks 90 marks will beearmarked for entrance examination and 10 marks for experience. Itis also their case that the allotment of 50% of seats for servicecategory and the remaining for open category has also been mentionedspecifically in the prospectus. It is the common knowledge thatunder open category system even a person who comes under servicecategory will be entitled to compete on merit. Therefore, the claimof service candidates in open category based on merit cannot beignored. The granting of 10 marks towards experience for servicecandidates after postgraduate degree is a policy of the Government.It is also the case of the said respondents that it is only afterapplying on the basis of prospectus and having failed in theirefforts to get selected on merit, the petitioners have chosen tochallenge the prospectus, which is not permissible. If at all thepetitioners are genuine, they should have challenged the term,'experience' in the prospectus at the time of issue of prospectus andnot after the publication of merit list. It is also stated that inrespect of D.M. (Cardiology) Course for which the writ petitioner inW.P.No.16226 of 2009 has competed, there are four seats and even asper merit list under open category, there are five candidates abovethe petitioner. It is stated that for a professional doctor, theexperience counts the merit. Even in respect of M.Ch.(GastroEnterology) for which the petitioner in W.P.No.14855 of 2009 hascompeted, there are five candidates in the merit list above the nameof the petitioner.14. It is the case of the said respondents that the ruralservice is taken into account for the purpose of admission topostgraduate course and when such benefit is given at the time ofadmission to postgraduate course, the same cannot be directed to betaken into account once again for the admission to super specialitycourses as that would amount to repetition of awarding marks toservice candidates. It is also the case of the respondents thatafter completion of basic degree in medicine, the doctors are postedin Primary Health Centres and when they complete their postgraduatecourse in medicine they are not posted in Primary Health Centres, butthey are posted in Taluk Hospitals and therefore, their service https://hcservices.ecourts.gov.in/hcservices/ cannot be treated as rural service.15. Mr.C.Selvaraju, learned senior counsel appearing for thepetitioners in W.P.Nos.14855 and 16226 of 2009 would contend thatawarding of 10 marks for experience is against the Regulations of theMedical Council of India. That apart, his contention is thatawarding of 10 marks would amount to reservation which is notpermissible in the matter of admission to super speciality courses.It is his submission that the State Government is bound to follow theRegulations of the Medical Council of India and inasmuch as it is inthe concurrent list of the Constitution of India, the StateGovernment can impose more restrictions than the Medical Council ofIndia Regulations and the Medical Council of India Regulations cannotbe diluted. His submission is that merit means only academicqualifications for the purpose of super speciality courses and theexperience cannot be treated as merit and such experience wouldamount to reservation and inasmuch as such reservation is notprotected under Article 15(1) of the Constitution of India, theconferring of 10 marks for experience is ultra vires.15(a). It is his submission that even for conferring 10 marks,it is not explained for which the marks are conferred. It is hissubmission that when service candidates are already given 50% oftotal seats, further conferring of 10 marks against experience wouldamount to reservation within reservation to certain group of persons.Such marks for experience is opposed to the concept of merit. Hewould rely upon the judgment of the Supreme Court in Dr.PreetiSrivastava vs. State of M.P. (AIR 1999 SC 2894). It is hissubmission that even otherwise, the State should have obtainedpermission from the Medical Council of India by relying upon thejudgments of the Supreme Court in State of Punjab vs. DayanandMedical College and Hospital (AIR 2001 SC 3006) and State of M.P. vs.Gopal D.Tirthani (AIR 2003 SC 2952). 15(b). It is his submission that when common entrance test isconducted, both service candidates and open category candidatesshould be treated on the same footing and there should be novariation. He would rely upon the judgment of the Supreme Court inSaurabh Chaudri vs. Union of India [(2003) 11 SCC 146]. It is hisfurther submission that in the previous year marks were given forrural service and it is for the year 2009-10, irrespective of natureof service, 10 marks are given for experience. He would rely upon thejudgment of the Supreme Court in Maharashtra University of HealthSciences represented by Deputy Registrar vs. Paryani MukeshJawaharlal [(2007) 10 SCC 201]. 15(c). To substantiate his contention that merit alone should bethe criterion he would rely upon the judgment of the Supreme Courtin Dr.Narayan Sharma vs. Dr.Pankaj KR.Lehkar [(2000) 1 SCC 44]. Itis his submission that even in the counter affidavit the respondents https://hcservices.ecourts.gov.in/hcservices/ have not made out as to the nexus between the object sought to beachieved and the awarding of marks for experience.16. It is the contention of Mr.R.Muthukumarasamy, learned seniorcounsel appearing for the petitioner in W.P.No.15355 of 2009 that thedilution of benefit of rural service which has been given from 2004onwards for admission to super speciality courses without assigningany reason is unlawful. It is his submission that first of all, theadmission to super speciality courses should be made only on meritand if entrance examination is conducted, the marks obtained in theentrance examination should alone be taken into consideration andeven if the policy is to encourage service among the doctors, it isonly the rural service which has to be taken as experience inconsonance with merit and the present system under the prospectus forthe year 2009-10 by which marks are given blindly after completion ofpostgraduate degree in medicine is without any basis whatsoever andcannot be taken as a decision on merit. 16(a). According to him, if the rural service is opposed tomerit, the service after postgraduate degree is also to be taken asbeing opposed to merit. It is his submission that from 2004 onwards,rural service rendered was not taken into consideration forpostgraduate course admission and the same was taken intoconsideration for admission to super speciality courses, however, in2009-10 it has become altogether different as rural service is takeninto account only for admission to postgraduate courses while thesame is not taken into account for admission to super specialitycourses and the service rendered after postgraduate degree alone istaken into account for super speciality courses. Inasmuch as afterpostgraduate degree a doctor is not posted in Primary Health Centresand he is posted in Taluk Hospitals, it is not rural service and thewrit petitioner is losing rural service benefit for postgraduatecourse admission and he is also losing now as the rural service isdispensed with for super speciality courses. 16(b). To justify his contention that rural service alone has tobe taken as experience, he would rely upon the judgments of theSupreme Court in (1) Dr.Jagdish Saran vs. Union of India [AIR 1980 SC820], (2) State of M.P. vs. Gopal D.Tirthani [(2003) 7 SCC 83] and(3) Saurabh Chaudri (Dr.) vs. Union of India [(2004) 5 SCC 618]. Thesaid arguments have been adopted by the learned counsel for thepetitioner in W.P.No.16797 of 2009.17. On the other hand, it is the contention of Mr.P.Wilson,learned Additional Advocate General that the prospectus is binding innature when the prospectus specifically states that 50% seats will bereserved for service candidates and the remaining seats will be givenfor non-service candidates on merit and that in respect of serviceand non-service candidates one mark for each year of service aftercompletion of postgraduate course is added subject to the maximum of https://hcservices.ecourts.gov.in/hcservices/ 10 marks. He would contend that having known about the saidcontents consciously, the petitioners applied for super specialitycourses and even without challenging the said clause at the time ofissuing prospectus, after the merit list was published, now thepetitioners have filed the present writ petitions and therefore, thewrit petitions are liable to be dismissed. 17(a). He would rely upon the judgment in Dr.R.Murali vs.Dr.R.Kamalakkannan (1999(3) CTC 675) to show that the petitionershaving taken part in the selection process cannot question the same.To substantiate his contentions, he would also rely upon thejudgments in S.Karthikeyan vs. Teachers' Recruitment Board (2007) 3CTC 814), T.T.Saravanan vs. State of Tamil Nadu (2004 (5) CTC 704),Dr.Preeti Srivastava vs. State of M.P. [(1999) 7 SCC 120] andSuryanarayan Sahu vs. Council of Scientific & Industrial Research[(1998) 2 SCC 162]. 17(b). In support of his submission that for professionalcourses academic merit alone would not decide the efficiency, hewould rely upon the judgment in Pre-PG Medical Sangharsh Committeevs. Dr.Bajrang Soni [(2001) 8 SCC 694]. He would submit that therule that weightage marks given to rural service has been accepted bythe Supreme Court and relied upon the judgments in Sanjay Ahlawat vs.Maharishi Dayanand University, Rohtak and others [1995 AIR SCW 228],State of M.P. vs. Gopal D.Tirthani [(2003) 7 SCC 83] and SaurabhChaudri vs. Union of India [(2003) 11 SCC 146]. 17(c). It is his submission that conferring of marks forexperience does not amount to diluting the merit system and it is nota reservation. According to him, for professional courses experienceis presumed to be merit and the concept of experience was taken intoconsideration for a long period, that is, from the year 1994 itselfand in support of his submission, he would rely upon the judgments inPre-PG Medical Sangharsh Committee vs. Dr.Bajrang Soni (2001 (8) SCC694), Dr.K.Sivasubramaniyam vs. Madras Institute of DevelopmentStudies (2006 (5) CTC 207), Rashmi Kant vs. Principal G.S.V.M.Medical College (AIR 1989 Allahabad 55 DB), Dr.Preeti Srivastava vs.State of M.P.[(1999) 7 SCC 120], State of Punjab vs. Dayanand MedicalCollege and Hospital (AIR 2001 SC 3006 ), State of M.P. vs. GopalD.Tirthani (AIR 2003 SC 2952) and M.P. Public Service Commission v.Navnit Kumar Potdar[(1994) 6 SCC 293]. 17(d). He would also submit that this is a policy decision whichhas been taken by the Government in the year 2009, which cannot bechallenged. According to him, in none of the cases, the contents ofprospectus is challenged or the policy decision is challenged asperverse and in such circumstances, this Court cannot interfere atthis stage when the admission process is completed. He would relyupon the judgment of the Supreme Court in S.Karthikeyan vs. Teachers'Recruitment Board (2007 (3) CTC 814) apart from the judgment of this https://hcservices.ecourts.gov.in/hcservices/ Court in 2004 (5) CTC 704. 17(e). He would submit that there is no legitimate expectationwhen there is a policy decision by the Government and when aftercompletion of postgraduate course a doctor is posted in TalukHospital, there is no rural service thereafter. He would rely uponthe judgments in Sethi Auto Service Station vs. Delhi DevelopmentAuthority [(2009) 1 SCC 180] and Ram Pravesh Singh vs. State of Bihar[(2006) 8 SCC 381] to substantiate his contention that legitimateexpectation does not give any legal right to any person. He wouldalso submit that there cannot be a direction relying upon thejudgments in Union of India vs. P.Rajeshwaran [(2003) 9 SCC 294] and[AIR 1967 SC 993].17(e). He contents that the present system has been formulatedas a policy after considering the representation from the DoctorsAssociation that giving more weightage to rural service is unjust.He submits that by experience at taluk level hospitals, the doctorsacquired merit and that should be given weightage for the purpose ofadmission to super speciality courses. 18. It is the submission on behalf of the Medical Council ofIndia that postgraduate regulations for super speciality courses wereframed in the year 2000. Learned counsel appearing for the MedicalCouncil of India would rely upon various conditions in theRegulations to substantiate his contention that basically it isacademic merit which should be taken into consideration for admissionand academic merit is theoretic and scholastic in nature. Hissubmission is that Medical Council of India Regulations are statutoryand they are to be followed, relying upon the judgment of the SupremeCourt in M.C.I. vs. State of Karnataka [(1998) 6 SCC 131]. 18(a). In the affidavit filed by the Medical Council of India itis stated that the Medical Council of India is a statutory authorityunder the Indian Medical Council Act, 1956 to regulate medicaleducation in the country. The rules framed by the Medical Council ofIndia are statutory in nature. For that, MCI v. State of Karnataka[(1998) 6 SCC 131] and Dr.Preeti Srivastava v. State of M.P. and Ors.[(1999)7 SCC 120] are referred to. 18(b). It is the case of the Medical Council of India that theregulations for postgraduate courses have been framed based onvarious judgments of the Supreme Court. The Postgraduate MedicalEducation Regulations, 2000 have been approved by the Government ofIndia on 22.5.2000 and the same have been made applicable to superspeciality courses and published in Gazette dated 7.10.2000. Itprovides for duration of postgraduate courses and selection ofpostgraduate course students. It also says about the period oftraining for Doctor of Medicine (DM) and M.Ch. The qualification hasalso been prescribed for M.Ch. and D.M. apart from M.D. Course. https://hcservices.ecourts.gov.in/hcservices/ 18(c). It is also stated in the counter affidavit that theGovernment of India has given time schedule for admission to medicaland dental courses, that is, the date up to which students can beadmitted viz., 30th September. It is stated in the counter affidavitthat when the petitioner in one of the writ petitions appearing forM.Ch.(Gastero Enterology) has secured second mark out of 137 studentswho have taken part and it is the petitioners' case that marksawarded for experience are without any proper guidelines and thatthere is ambiguity and the direction given by the Medical Council ofIndia has been violated. It is the case of the Medical Council ofIndia that all admissions in medical colleges, in super specialitycourses is to be made in terms of Medical Council of IndiaRegulations and no admission can be made without fulfilling theminimum eligibility criteria in terms of Medical Council of IndiaPostgraduate Regulations, 2000. 18(d). It is the case of the Medical Council of India that themerit for admission to super speciality course is only on the marksin the academic qualifications in the last three years and thereforeawarding of marks for experience without any rational nexus to theobject is illegal. The Medical Council of India has also referred tothe judgments in MCI v. Madhu Singh & Ors [(2002) 7 SCC 258] andShefali Nandwani v. State of Haryana [(2002) 8 SCC 152]. Theadmission to super speciality courses, according to the MedicalCouncil of India, should be based on Medical Council of IndiaRegulations, 2000.19. It is the submission of Mr.R.Sureshkumar, learned counselappearing for the selected candidates who have been impleaded asrespondents in three writ petitions that they have high academicproficiency. He would submit that as far as in W.P.No.14855 of 2009is concerned, the selected candidate/4th respondent applied forM.Ch. (Surgical Gastro Enterology) after completing M.B.B.S. and FRCSin December, 2000 and he joined as Trainee Surgeon and worked asHonourary Trainee Surgeon from 2001 to 2003. He worked from 2003 to2008 in U.K. and thereafter, he has been working in RajarathnamInstitute of Gastro Intestinal Diseases, Chennai. He further submitsthat the selected candidate had rich experience and he scored 72marks out of 90 marks in the entrance examination and nine marks wereadded against experience for nine years and totally he got 81 marksand in fact, he is a meritorious candidate and he has richexperience. 20. As far as the 4th respondent in W.P.No.16226 of 2009 isconcerned, the contention of the learned counsel is that he completedpostgraduate course in the year 2005 and working as Senior Residentin Paediatrics Department in Stanley Medical College Hospital and hegot four years experience and for that he was given four marks out of10. According to him, in the entrance examination he got 76.50 marksout of 90 marks and totally he got 80.50 marks and even on merit https://hcservices.ecourts.gov.in/hcservices/ among service candidates he stands at third place out of six seatsand in the rank list third rank and therefore, absolutely there isno grievance to the petitioner and the 4th respondent is entitled foradmission. 21. In respect of third respondent in W.P.No.15355 of 2009, itis submitted that the third respondent worked as Tutor in GovernmentKilpauk Medical College and he has been continuously practising andhe also worked in the Primary Health Centre at Kancheepuram from1999 to 2002. In the entrance examination he got 60.75 marks out of90 marks and adding three marks for experience, totally he secured63.75 marks. It is his submission that the petitioner has no locusstandi to file the writ petition since the petitioner has neitherchallenged the order of the Government nor the prospectus, nor thepolicy of the Government. He would rely upon the judgments in MadanLal vs. State of J & K [(1995) 3 SCC 486] and Sri Ram A.(minor) vs.State of Tamil Nadu [2005 WLR 691]. 21(a). He submits that the binding nature of prospectus is wellestablished by the judgment in Dr.M.Vennila vs. Tamil Nadu PublicService Commission [2006 WLR 574]. He would submit that thepetitioner is estopped from challenging the prospectus havingparticipated in the selection process and relied upon the judgment inIndian Airlines Limited vs. K.Narayanan (2007 (5) MLJ 648). He wouldsubmit that it is not permissible to exclude or include a privilegeby the direction of the Court as it is a legislative function of theState and rely upon the judgment in Dhananjay Malik vs. State ofUttaranchal (2008 (4) SCC 171 ) apart from the judgment inDr.S.Rajesh vs. The State of Tamil Nadu (2009 WLR 223). 21(b). When a person after completing the professional course inmedicine is practising as a doctor, it cannot be stated that suchperson would be keeping quiet and experience should not be treatedas merit. The experience has been treated as merit for nearly 25years. For that he would rely upon Dr.A.Rathnaswamy vs. Director ofMedical Education (1986 WLR 207). He would also refer to variousprovisions of the prospectus to the effect that the prospectus isvery clear and having understood the terms of the prospectus thepetitioner has participated in the selection process. 21(c). It is his submission that the prospectus is not againstthe Medical Council of India Regulations and 20% seats reserved forrural area itself has been held valid. What is given in the presentcase is mark for experience. It is open to the Government toidentify by giving importance to the experience and inasmuch as thereis no scope for arbitrariness, there is no possibility for this Courtto interfere. In so far as the selected candidates are concerned,their selection is purely on merit, there is no necessity tointerfere at this stage in these writ petitions. He would submitthat at least for this academic year, interference is not warranted. https://hcservices.ecourts.gov.in/hcservices/

22. With regard to the material facts which are stated aboveregarding the marks obtained by the petitioners as well asrespective selected candidates/respondents, there is no much dispute.The main dispute which has been raised in the writ petitions ascontended by the learned senior counsel for the petitioners relatesto awarding of experience marks after completion of postgraduatecourses in medicine viz., one mark for every completed year to beadded in respect of both service and non-service candidates subjectto maximum 10 marks. The awarding of marks against experience isquestioned on the ground that there are no proper guidelines for thepurpose of ascertaining the actual merit and therefore, in thecontext of accepted principle laid down by the Hon'ble Apex Courtthat merit alone shall be the criterion for admission to superspeciality courses, the awarding of marks against experience iswithout any rational nexus to the object sought to be achieved and`it would be a reservation diluting the merit. 23. On the other hand, it is the contention on the side of therespondents that it would not amount to reservation and it is whileascertaining merit, experience plays an important role for aprofessional person like, doctor and therefore, giving weightage tothe experience acquired by the doctor after postgraduate coursecannot be deemed to be a dilution of merit. However, it is thecontention on behalf of the selected candidates that the selectedcandidates/respondents stand above the respective petitioners evenon merit and there is no necessity to interfere with the selectionprocess at least for this year on the basis of marks awarded againstexperience.24. Before adverting to the actual issue involved, it isrelevant to note some of the facts other than the facts which havealready been elicited. 25. It is not in dispute that even before the prospectus for theyear 2009-10 for super speciality courses was issued, out of thetotal marks, 90 marks were given for entrance examination and 10marks were given for experience. In addition to that, rural markswere added in respect of service candidates up to the maximum of 10marks based on the length of service rendered in the Primary HealthCentres. The relevant portion of the prospectus for the year 2007-08is as follows;"49.MERIT LIST:The merit list for each discipline of the HigherSpeciality course will be prepared by computing theentrance examination marks and experience marks, which willbe calculated to a maximum of 100 (Entrance Examinationmarks to a maximum of 90 + Experience Marks to a maximum of10). Rural Services Marks will be added to the total https://hcservices.ecourts.gov.in/hcservices/ aggregate marks of the service candidates."26. In effect, in respect of candidates with rural service, theywere given maximum 10 marks in addition to 100 marks already fixed,viz., 90 marks for entrance examination and 10 marks for experience,that is, one mark for each year after completion of postgraduatecourse subject to the maximum of 10 marks. Therefore, experiencemarks were also available for super speciality courses in addition torural service marks. It is for the year 2009-10, based on the reportof the Additional Director of Medical Education dated 22.5.2009, theGovernment passed G.O.(D) No.612, Health and Family Welfare (MCA I)Department dated 25.5.2009 propounding a draft policy in the form ofprospectus for super speciality courses for the year 2009-10. TheG.O. by which the policy has been framed is as follows:"G.O.(D).No.612 Health and Family Welfare (MCA1)Departmentdated 25.5.2009Order:The Additional Director of MedicalEducation/Secretary, Selection committee in her letter readabove has sent the draft policy/prospectus for admission toHigher Speciality courses for the year 2009-10 with certainmodifications and also with changes of clauses for easyaccessibility and requested to approve the same.2. The Government after careful consideration acceptthe modifications suggested by the Additional Director ofMedical Education/Secretary, Selection Committee, Chennaiand approve the policy/prospectus for admission of thecandidates to Higher Speciality courses 2009-10 withmodifications/changes suggested by the Additional Directorof Medical Education/Secretary, Selection Committee. Acopy of the approved policy/prospectus for admission ofcandidates to Higher Speciality courses for the year 2009-10 is annexed to this order."27. In the proposed prospectus in the form of policy as per thesaid G.O. dated 25.5.2009, the 'merit list' is stated in clause 7 asfollows:"VII. MERIT LIST:41. Two merit list – 1) open merit list and 2) servicemerit list will be published.Open merit list (for both service and non-service) foreach discipline of the Higher Speciality course will beprepared by computing the entrance examination marks andexperience marks, which will be calculated to a maximum of100 (Entrance Examination Marks to a maximum of 90 +Experience Marks to a maximum of 10). https://hcservices.ecourts.gov.in/hcservices/ Service merit list wil be published seperately.42. a) the Individual Mark (Service/Non-service) iscalculated by computing the marks secured by the Candidatein the Entrance Examination and Experience Marks of onemark for each year after completion of the P.G.Degree whichis calculated from the last date of the month of passingExamination to 30.06.2009. (E.g. If a candidate scores 50Marks out of 90 marks in Entrance Examination and hascompleted Two Years after P.G.Degree as on 30.06.2008, thecandidate's total Aggregate Mark will be 50+2=52).b) Fractional values of an year will not becounted for awarding marks for experience."28. The schedule issued by the Government in respect of Doctorof Medicine (DM) regarding Cardiology and M.Ch. also conforms to thestatus position and the same is as follows:SCHEDULE: "C"D.M. (DOCTOR OF MEDICINE) for which candidates mustpossess recognised degree of M.D. (or its equivalentrecognised degree) in the subject shown against them.Sl.No.Area of SpecialisationPrior Requirement1CardiologyMD (Medicine)MD (Paediatrics)2Clinical HematologyMD (Medicine)MD (Pathology)MD (Paediatrics)MD (Biochemistry)3Clinical PharmacologyMD (Pharmacology)4EndocrinologyMD (Medicine)MD (Paediatrics)MD (Biochemistry)5ImmunologyMD (Medicine)MD (Pathology)MD (Microbiology)MD (Paediatrics)MD (Biochemistry)MD (Physiology)6Medical GastroenterologyMD (Medicine)MD (Paediatrics) https://hcservices.ecourts.gov.in/hcservices/ Sl.No.Area of SpecialisationPrior Requirement7Medical GeneticsMD/MS in any subject8Medical OncologyMD (Medicine)MS (Radiotheraphy)MD (Paediatrics)9NeonatologyMD (Paediatrics)10NephrologyMD (Medicine)MD (Paediatrics)11NeurologyMD (Medicine)MD (Paediatrics)12Neuro-radiologyMD (Radio-Diag.)SCHEDULE: "D"D.Mch.(Master of Chirurgie) for which candidates mustpossess recognised degree of M.S. (or its equivalentrecognised degree) in the subjects shown against them.Sl.No.Area of SpecialisationPrior Requirement1Cardio vascular & Thoracic SurgeryMS (Surgery)2UrologyMS (Surgery)3Neuro-SurgeryMS (Surgery)4Paediatrics SurgeryMS (Surgery)5Plastic & Reconstructive SurgeryMS (Surgery)6Surgical GastroenterologyMS (Surgery)7Surgical OncologyMS (Surgery)MS (ENT)MS (Orthopaedics)MD (Obst.&Gynae.)8Endocrine SurgeryMS (General Surgery)29. In M.P. Public Service Commission v. Navnit Kumar Potdar[(1994) 6 SCC 293] while deciding about the minimum qualification forthe Presiding Officer, Labour Court, it was held that long experienceof an advocate becomes more important, thereby upholding theexperience in professional courses like, law and medicine. Therelevant portion is as follows:"12. On behalf of the respondents, it was pointed outthat there is no presumption that an advocate having seven https://hcservices.ecourts.gov.in/hcservices/ and half years of experience will be more suitable for thepost of Presiding Officer of the Labour Courts than anadvocate having only five years of experience because itall depends on the personal merit of the candidateconcerned. It is true that it has been found that sometimesthe persons with lesser years of experience and practicehave proved to be better advocates and they excel inprofession. The success in profession is not necessarilylinked with the years of practice. But that may be anexception. Normally, it is presumed that with longerexperience an advocate becomes more mature. In any case,this fixing the limit at seven and half years instead offive years of the practice for purpose of calling theinterview cannot be said to be irrational, arbitrary havingno nexus with the object to select the best amongst theapplicants."Therefore, by the said proposed policy, the Government has given upthe additional 10 marks for rural service while continuing theexperience marks to the maximum of 10. In other words, in 2009-10also, the experience marks continue as it was earlier while the ruralmarks have been dispensed with. The reason adduced is that 10 marksfor experience has been given as it was earlier for every candidatewho has completed his postgraduate course in medicine at the rate ofone mark per year and the rural service marks of 10 have beendispensed with for the reason that after completion of postgraduatecourse in medicine, the doctors are not posted in primary healthcentres and they are posted in taluk Headquartes and cities andtherefore, there is no necessity to take the rural service intoconsideration for admission to super speciality courses. However, itis not in dispute that for admission to postgraduate courses in theyear 2009-10 in medicine the experience in rural service is takeninto consideration.30. The writ petitioner in W.P.No.15355 of 2009 who got admittedin postgraduate course in M.S.(General Surgery) in the year 2009, bythat time, had put in three years of experience in public healthcentres, viz., rural service and that was not taken intoconsideration at the time of his admission to M.S.(General Surgery)in 2003, which is not in dispute. That was because, at that time,the rural service was not as a matter of policy taken intoconsideration for postgraduate course admission in medicine. In2009-10, when the said petitioner applied for super specialitycourse, unfortunately, for him the experience in rural service, whichwas taken into account for admission to super speciality courses upto 2008-09 has been dispensed with in the year 2009-10 due to theabove said policy and therefore, for super speciality course also, hehas been deprived of the right of consideration of rural service forthree years, while he has been admittedly given two marks for serviceafter postgraduate course in the admission to super speciality course https://hcservices.ecourts.gov.in/hcservices/ for the year 2009-10.31. Law is well settled that inclusion or exclusion of aprivilege is for the legislature to decide and not for the Court tolegislate, as it was held in SRI RAM.A (MINOR) REP. BY HIS FATHER ANDNATURAL GUARDIAN MR.P.ARUMUGAM ..vs.. STATE OF TAMIL NADU AND ANOTHER(2005 WLR 691), wherein D.Murugesan,J. held as follows:"9. Law is well settled that this Court, in exerciseof its powers, shall not enter upon to direct legislationin a particular subject, as legislation on a subject is theexclusive jurisdiction of the Legislature, as has been heldin various judgments, more particularly, in "Miss.RominiSusan Kurian ..vs.. State of A.P.and others (AIR 1992A.P.380)", in "Midhuna Nathan ..vs.. State of Tamil Nadurep.by its Secretary, Department of Health, Fort St.George,Madras & Seven others (1995 Writ L.R.851)" and in"G.Sumathi ..vs.. The Director of Medical Education, Madrasand others (AIR 1993 Madras 328)". It will not be withinthe jurisdiction of the Court either to amend, alter or toadd something into the prospectus, as it would be thefunction of the State in exercise of the powers underArticle 162 of the Constitution of India. Either thechallenge or the direction for inclusion or grandchildrenof Freedom Fighters, ex-servicemen has no legs in thecontext that the petitioners cannot firstly insist theGovernment to identify the source of admission underspecial category in a particular manner or request theCourt to direct the Government to identify and earmarkcertain number of seats for a particular special categoryof persons".32. Further, if the Government in its wisdom decides aboutcertain concessions to be given or concessions already given in theprevious years to be withdrawn, the same cannot be expected to befollowed as a matter of right, unless there is arbitrariness in thesaid process, and that was the view of the Hon'ble Apex Court inK.V.Rajalakshmiah Setty vs. State of Mysore [AIR 1967 SC 993] whereinit was held as follows:"12. There is some force in some of the contentions putforward on behalf of the State of Mysore. It is notnecessary to test them as we find ourselves unable touphold the contention of the appellants. Nodoubt someconcession had been shown to the first batch of 41 personsand the batches of persons who had come in after the batchof 63 persons also received some concession, but after allthese were concessions and not something which they couldclaim as of right. The State of Mysore might have shownsome indulgence to this batch of 63 persons but we cannot https://hcservices.ecourts.gov.in/hcservices/ issue a writ of mandamus commanding it to do so. There wasno service rule which the State had transgressed nor hasthe State evolved any principle to be followed in respectof persons who were promoted to the rank of AssistantEngineers from surveyors. The indulgences shown to thedifferent batches of persons were really ad hoc and we arenot in a position to say what, if any, ad hoc indulgenceshould be meted out to the appellants before us."Therefore, the contention of the learned senior counselMr.R.Muthukumarasamy appearing for the petitioner in W.P.No.15355 of2009 that rural service should be taken into consideration for thepurpose of admission to super speciality courses, is unsustainablesince the petitioner cannot as a matter of right claim that his ruralservice has to be taken into consideration for admission. 33. After the policy was made by the Government by way of aboveG.O. dated 25.5.2009, it is seen that the Government has issuednotification on 29.5.2009 calling for applications for admission tosuper speciality courses by the sale of application form andprospectus between 3.6.2009 and 12.6.2009 stating that the last datefor receipt of filled in application is 12.6.2009. The writpetitioners based on the said advertisement in newspapers have boughtthe prospectus and submitted their applications by 10.6.2009. It isstated that the petitioner in W.P.No.14855 of 2009 submitted hisapplication on 3.6.2009 while the petitioner in W.P.No.16226 of 2009submitted his application on 10.6.2009 and the petitioner inW.P.No.15355 of 2009 submitted his application on 3.6.2009. Knowingvery well about the contents of prospectus in the respective clauses,the petitioner applied for the courses. It cannot be said thatpetitioners were not aware that experience marks after postgraduatecourse would be taken into consideration for service candidates andrural service would not be taken into consideration for admission tosuper speciality courses. Admittedly, after knowing about thecontents of the prospectus, none of the petitioners approached thisCourt challenging the respective clauses of the prospectus. On theother hand, acting on the terms and conditions of the prospectus,they submitted their applications and in fact, they participated inthe entrance examination which was held on 26.7.2009, the result ofwhich was published on 29.7.2009. It was only after finding that thepetitioners' names were not in the list, the petitioners approachedthis Court by filing the above said writ petitions in August, 2009. 34. Admittedly, the Apex Court fixed the cut-off date forcompletion of admission to medical courses as 30.9.2009. Thepetitioners have neither challenged the Government Order by which thepolicy has been evolved for the year 2009-10, nor the directions inthe prospectus and the writ petitions have been filed for directionsas stated above. https://hcservices.ecourts.gov.in/hcservices/

35. The binding nature of the contents of prospectus andinstructions has been upheld in no uncertain terms by this Court byP.Sathasivam,J.(as he then was) and J.A.K.Sampathkumar,J. inDr.Vennila v. State of T.N. (2006 WLR 574) and the relevant portionsof the judgment is as follows:"16. Now, let us consider whether the requirements asstated in the Notification/Information Brochure are to bestrictly complied with or not and in other words, whetherthey are mandatory ?17. ....18. ....19. The principle that the prospectus is binding onall persons concerned has been laid by the Supreme Court inPunjab Engineering College, Chandigarh ..vs.. Sanjay Gulati(AIR 1983 SC 580 = 1983 (96) L W 172 S.N.). Following thesame, a Division Bench of this Court has also observed inRathnaswamy, Dr.A. ..vs.. Director of Medical Education(1986 W L R 207) that the rules and norms of the prospectusare to be strictly and solemnly adhered to. The same viewis also taken by another Division Bench of this Court inNithyan P. and S.P.Prasanna ..vs.. State of Tamil Nadu(1994 WLR 624). The same principle is reiterated in thecase of Dr.M.Ashiq Nihmathullah ..vs.. The Government ofTamil Nadu and others reported in 2005 WLR 697. It isclear that the prospectus is a piece of information and itis binding on the candidates as well as on the Stateincluding the machinery appointed by it for identifying thecandidates for selection and admission".36. The proposition that when a candidate consciously takes partin selection process by attending oral interview, after finding thathe has not emerged successfully, he is estopped from contending thatthe interview process is unfair as was held by the Apex Court inMadanlal v. State of J.& K. [(1995) 3 SCC 486] in the followingwords:"9. Before dealing with this contention, we must keep inview the salient fact that the petitioners as well as thecontesting successful candidates being respondentsconcerned herein, were all found eligible in the light ofmarks obtained in the written test, to be eligible to becalled for oral interview. Up to this state there is nodispute between the parties. The petitioners also appearedat the oral interview conducted by the Members concerned ofthe Commission who interviewed the petitioners as well asthe contesting respondents concerned. Thus the petitionerstook a chance to get themselves selected at the said oral https://hcservices.ecourts.gov.in/hcservices/ interview. Only because they did not find themselves tohave emerged successful as a result of their combinedperformance both at written test and oral interview, theyhave filed this petition. It is now well settled that if acandidate takes a calculated chance and appears at theinterview, then, only because the result of the interviewis not palatable to him, he cannot turn round andsubsequently contend that the process of interview wasunfair or the Selection Committee was not properlyconstituted. In the case of Om Prakash Shukla ..vs..Akhilesh Kumar Shukla (1986 Supp SCC 285 : 1986 SCC (L&S)644 : AIR 1986 SC 1043) it has been clearly laid down by aBench of three learned Judges of this Court that when thepetitioner appeared at the examination without protest andwhen he found that he would not succeed in examination hefiled a petition challenging the said examination, the HighCourt should not have granted any relief to such apetitioner.10. Therefore, the result of the interview test onmerits cannot be successfully challenged by a candidate whotakes a chance to get selected at the said interview andwho ultimately finds himself to be unsuccessful. It isalso to be kept in view that in this petition we cannot sitas a court of appeal and try to reassess the relativemerits of the candidates concerned who had been assessed atthe oral interview nor can the petitioners successfullyurge before us that they were given less marks though theirperformance was better. It is for the Interview Committeewhich amongst others consisted of a sitting High CourtJudge to judge the relative merits of the candidates whowere orally interviewed, in the light of the guidelineslaid down by the relevant rules governing such interviews.Therefore, the assessment on merits as made by such anexpert committee cannot be brought in challenge only on theground that the assessment was not proper or justified asthat would be the function of an appellate body and we arecertainly not acting as a court of appeal over theassessment made by such an expert committee".37. That was also the view of the Supreme Court in DHANANJAYMALIK AND OTHERS ..vs.. STATE OF UTTARANCHAL AND OTHERS [(2008) 4 SCC171], of course in respect of service law wherein it was held asfollows:"7. It is not disputed that the respondent-writpetitioners herein participated in the process of selectionknowing fully well that the educational qualification wasclearly indicated in the advertisement itself as BPE orgraduate with diploma in Physical Education. Havingunsuccessfully participated in the process of selection https://hcservices.ecourts.gov.in/hcservices/ without any demur they are estopped from challenging theselection criterion inter alia that the advertisement andselection with regard to requisite educationalqualifications were contrary to the Rules.8. In Madan Lal ..vs.. State of J & K ((1995) 3 SCC486) this Court pointed out that when the petitionersappeared at the oral interview conducted by the membersconcerned of the Commission who interviewed the petitionersas well as the contesting respondents concerned, thepetitioners took a chance to get themselves selected at thesaid oral interview. Therefore, only because they did notfind themselves to have emerged successful as a result oftheir combined performance both at written test and oralinterview, they have filed writ petitions. This Courtfurther pointed out that if a candidate takes a calculatedchance and appears at the interview, then, only because theresult of the interview is not palatable to him, he cannotturn round and subsequently contend that the process ofinterview was unfair or the Selection Committee was notproperly constituted.9. In the present case, as already pointed out, therespondent-writ petitioners herein participated in theselection process without any demur; they are estopped fromcomplaining that the selection process was not in accordancewith the Rules. If they think that the advertisement andselection process were not in accordance with the Rules theycould have challenged the advertisement and selectionprocess without participating in the selection process.This has not been done.10. In a recent judgment in Marripati Nagaraja ..vs..Govt.of A.P.((2007) 11 SCR 506), SCR at p.516, this Courthas succinctly held that the appellants had appeared at theexamination without any demur. They did not question thevalidity of fixing the said date before the appropriateauthority. They are, therefore, estopped and precluded fromquestioning the selection process".38. Even in the judgment relied upon by the learned seniorcounsel for the petitioners Mr.C.Selvaraju, in Raj Kumar vs. ShaktiRaj [(1997) 9 SCC 527], the Supreme Court held that a person who hasconsciously taken part in selection process and remained unsuccessfulcannot challenge the selection process and the rule of estoppel wouldapply. It was also held that in cases of glaring illegalities, suchestoppel would not stand in the way of removing such illegalities.The relevant paragraph of the judgment is as follows: https://hcservices.ecourts.gov.in/hcservices/ "16. Yet another circumstance is that the Governmenthad not taken out the posts from the purview of the Board,but after the examinations were conducted under the 1955Rules and after the results were announced, it exercisedthe power under the proviso to para 6 of 1970 Notificationand the posts were taken out from the purview thereof.Thereafter the Selection Committee was constituted forselection of the candidates. The entire procedure is alsoobviously illegal. It is true, as contended by Shri MadhavaReddy, that this Court in Madan Lal v. State of J&K andother decisions referred therein had held that a candidatehaving taken a chance to appear in an interview and havingremained unsuccessful, cannot turn round and challengeeither the constitution of the Selection Board or themethod of selection as being illegal; he is estopped toquestion the correctness of the selection. But in his case,the Government have committed glaring illegalities in theprocedure to get the candidates for examination under the1955 Rules, so also in the method of selection and exerciseof the power in taking out from the purview of the Boardand also conduct of the selection in accordance with theRules. Therefore, the principle of estoppel by conduct oracquiescence has no application to the facts in this case.Thus, we consider that the procedure offered under the 1955Rules adopted by the Government or the Committee as well asthe action taken by the Government are not correct in law."39. Relying upon the judgment of the Supreme Court in Union ofIndia v. N.Chandrasekaran [(1998) 3 SCC 694] and quoting a portion ofthe said judgment, the Division Bench of this Court consisting ofP.Sathasivam,J.(as he then was) and N.Paul Vasanthakumar,J. in IndianAirlines Limited v. K.Narayanan (2007 (5) MLJ 648) laid down withapproval the law that a candidate who took part in selection processis estopped from challenging the same. The Hon'ble Judges in greatdetail explained the various decisions on the subject and the same isas follows:"24. The learned counsel for the management is alsoright in contending that the first respondent inW.A.No.2077 of 2005 having taken part in the selectionprocess, is estopped from challenging the notificationinviting application, mode of selection, etc., after hisparticipation and non-selection as held by the HonourableSupreme Court in the decision reported in Union of Indiaand another vs. N.Chandrasekharan and Others AIR 1998 SC795 : (1998) 3 SCC 694, wherein in paragraph 13 it is heldthus," 13. We have considered the rivalsubmissions in the light of the facts presentedbefore us. It is not in dispute that all the https://hcservices.ecourts.gov.in/hcservices/ candidates were made aware of the procedure forpromotion before they sat for the written testand before they appeared before the DeprtmentalPromotion Committee. Therefore, they cannot turnaround and contend later when they found theywere not selected by challenging that procedureand contending that the marks prescribed forinterview and confidential reports aredisproprotionately high and the authoritiescannot fix a minimum to be secured either atinterview or in the assessment on confidentialreport. ....."25. The principle of estoppel is considered by theHonourable Supreme Court in various decisions.(i) In the decision reported in I.L.Honnegouda ..vs..State of Karnataka and Others AIR 1978 SC 28 the HonourableSupreme Court held thus,"In view of our judgment in Appeals Nos.883 and898 to 905 of 1975 :(Reported in AIR 1977 SC 876)which has just been delivered and the fact thatthe appellant acquiesced to the 1970 Rules byapplying for the post of the Village Accountant,appearing before the Recruitment Committee forinterview in 1972 and 1974 and taking a chance ofbeing selected, the present appeal whichquestions the constitutionality of Rules 4 and 5of the 1970 Rules cannot be allowed. It isaccordingly dismissed but without any order as tocosts".(ii) In Om Prakash Shukla ..vs.. Akhilesh Kumar ShuklaAIR 1986 SC 1043 : 1986 (Supp) SCC 285 in paragraph 24, theHonourable Supreme Court held thus,"24. Moreover, this is a case where thepetitioner in the writ petition should not havebeen granted any relief. He had appeared for theexamination without protest. He filed thepetition only after he had perhaps realised thathe would not succeed in the examination. TheHigh Court itself has observed that the settingaside of the results of examinations held in theother districts would cause hardship to thecandidates who had appeared there. The sameyardstick should have been applied to thecandidates in the district of Kanpur also. Theywere not responsible for the conduct of theexamination". https://hcservices.ecourts.gov.in/hcservices/ (iii) In Madan Lal ..vs. State of Jammu & Kashmir AIR1995 SC 1088 : (1995) 3 SCC 486, it is held thus,"9. ....The petitioners also appeared at the oralinterview conducted by the Members concerned ofthe Commission who interviewed the petitioners aswell as the contesting respondents concerned. Thusthe petitioners took a chance to get themselvesselected at the said oral interview. Only becausethey did not find themselves to have emergedsuccessful as a result of their combinedperformance both at written test and oralinterview, they have filed this petition. It isnow well settled that if a candidate takes acalculated chance and appears at the interview,then, only because the result of the interview isnot palatable to him, he cannot turn round andsubsequently contend that the process of interviewwas unfair or the Selection Committee was notproperly constituted. In the case of Om PrakashShukla ..vs.. Akhilesh Kumar Shukla AIR 1986 SC1043 it has been clearly laid down by a Bench ofthree learned Judges of this Court that when thepetitioner appeared at the examination withoutprotest and when he found that he would notsucceed in examination he filed a petitionchallenging the said examination, the High Courtshould not have granted any relief to such apetitioner".(iv) The above said decisions of the Honourable SupremeCourt were followed by the Full Bench of this Court in thedecision reported in R.Murali ..vs.. R.Kamalakannan AIR2000 Mad 174 (FB):(2000) 1 MLJ 1 and in paragraph 55,question No.2 was answered thus at p.18 of MLJ:"Question No.2: We hold that writ petitioners arenot entitled to challenge the selection afterhaving participated in the written examination onthe principle of estoppel".40. Again, narrating the entire case laws on the subject, N.PaulVasanthakumar,J. in Dr.S.Rajesh v. State of T.N. (2009 WLR 223)ultimately held as follows:"19. The above referred judgments are followed in arecent decision of a Division Bench of this Court in (2007)5 MLJ 648 (Indian Airlines Ltd ..vs.. K.Narayanan),wherein the contention of the management therein thatperson participated in selection in terms of thenotification are estopped from challenging the mode ofselection or the conditions contained in theinstructions/rules was upheld". https://hcservices.ecourts.gov.in/hcservices/

41. In such circumstances, I am of the considered view that thepetitioners having taken part in the admission process consciouslyknowing about the contents of the prospectus and some of thepetitioners having got benefits of the service marks also, havechosen to file the present writ petitions for direction in effectchallenging the validity of the contents of the prospectus. Withoutchallenging the policy of the Government in the Government Order asstated above they cannot be permitted to question the contents of theprospectus which forms part of the policy of the Government. On thissimple ground of estoppel and locus standi, the writ petitions areliable to be dismissed.42. Coming to the Medical Council of India Regulations, it is nodoubt true that the regulations framed by the Medical Council ofIndia are statutory in nature, as it was held by the Supreme Court inState of Punjab v. Dayanand Medical College and Hospital (AIR 2001 SC3006). In that judgment, the Supreme Court was dealing with theadmission to P.G. Medical courses where the State of Punjab reserved60% of seats for candidates in service leaving 40% of seats for allcandidates who are residents of the State of Punjab.While holdingthat such policy of reservation is that of the Government and not ofthe Medical Council of India, the Supreme Court held that the Stateis better placed to exercise such power than any other authority.When admission to P.G. Courses was made in violation of the MedicalCouncil of India Regulations which contemplates a minimum of 40%marks in relevant subjects and the State Government reduced themarks below 40%, it was held that the University or the Governmentcannot dilute the standards by fixing the minimum marks lower thanwhat is set out by the Medical Council of India. The relevantportion of the judgment is as follows:" 17. It is clear that in respect of subjects otherthan Anatomy, Physiology, Biochemistry, Pharmacology,Pathology, Microbiology, Forensic Medicine and Social andPreventive Medicine at least 40% of the marks will have tobe obtained in order to be eligible for admission and inrespect of other subjects there is no such condition atall. In the counter-affidavit filed in the High Court, itis stated that the percentage of marks has been reducedbelow 40% for the basic subjects like Anatomy, Physiologyand Pharmacology because the candidates of higher merit arenot opting for these subjects and as such the postgraduateseats in Departments of Anatomy, Physiology andPharmacology keep lying vacant and thus leading to an acuteshortage of teachers in these Departments. Further, thecondition of 50% marks in the entrance test was reduced to40% because 80% of the seats reserved for PCMS doctorsremained unfilled because most of them could not secure 50% https://hcservices.ecourts.gov.in/hcservices/ marks in PGET due to the fact that they do not get academicsupport in rural areas. It is submitted that thepostgraduate entrance examination is held for those whohave already passed in MBBS examination by securing atleast 50% marks and, therefore, the candidates who had notsecured 50% in the postgraduate entrance examination cannotbe declared to be filled (sic) in MBBS. The lowering of themarks to less than 50% has the twin objective ofsafeguarding the interests of weaker sections of theScheduled Castes and Backward Classes and to meet theconstitutional obligation. We are afraid, the approach ofthe State of Punjab in this regard results in stultifyingthe logic. What is contended is that suitable candidatesare to be selected from amongst the eligible candidates andin that regard an entrance test is being held. When such anentrance test is held, a prescription has been made by theMedical Council of India fixing a standard in terms ofEntry 66 List I of the Seventh Schedule to the Constitutionand which cannot be diluted at all as has been held in aseries of decisions including Dr Preeti Srivastava case, DrNarayan Sharma v. Dr Pankaj Kumar Lehkar and MedicalCouncil of India v. State of Karnataka. Therefore, it isnot open to the university or the Government to dilute thatstandard by fixing marks lower than what is set out by theMedical Council of India. If they had any difficulty theyought to have approached the Medical Council of India forfixing of appropriate standards in that regard. The StateGovernment could not unilaterally frame a scheme reducingthe standard in violation of the terms of the Regulationsframed by the Medical Council of India, which is repeatedlystated by this Court to be the repository of the power toprescribe standards in postgraduate studies subject, ofcourse, to the control of the Central Government asenvisaged in the Act constituting the Council.43. In that case, the Supreme Court referred to clause 9 of theMedical Council of India Regulations 2000 which is as follows:" 9. SELECTION OF POSTGRADUATE STUDENTS(1)Students for postgraduate medical courses shall beselected strictly on the basis of their academicmerit.(2)For determining the academic merit, theuniversity/institution may adopt any one of thefollowing procedures both for degree and diplomacourses:(i)On the basis of merit as determined by acompetitive test conducted by the stategovernment or by the competent authorityappointed by the state government or by the https://hcservices.ecourts.gov.in/hcservices/ university/group of universities in the samestate; or(ii)On the basis of merit as determined by acentralised competitive test held at thenational level; or(iii)On the basis of the individual cumulativeperformance at the first, second and third MBBSexaminations, if such examinations have beenpassed from the same university; or(iv)Combination of (i) and (ii)Provided that wherever entrance test for postgraduateadmission is held by a state government or a university orany other authorised examining body, the minimum percentageof marks for eligibility for admission to postgraduatemedical course shall be 50 percent for general categorycandidates and 40 percent for the candidates belonging toSchedule Castes, Schedules Tribes and Other BackwardClasses:Provided further that in non-governmental institutionsfifty percent of the total seats shall be filled by thecompetent authority and the remaining fifty percent by themanagement of the institution on the basis of merit."While clause 9 of the Medical Council of India Regulation 2000 speaksabout the selection of P.G. students, there are no other provisionsdealing with the selection of super speciality courses. It is truethat clause 10 speaks about the period of training for various P.G.courses in which D.M. as well as M.Ch. course has been mentioned tothe effect that the period of training for obtaining the said degreesshall be three completed years after obtaining M.D. /M.S. Degree.Except the said clause, there is no other indication in the MedicalCouncil of India Regulations, 2000 about the selection to superspeciality courses.44. In Preeti Srivastava (Dr) vs. State of M.P., (AIR 1999SC 2894), the Constitution Bench of the Supreme Court dealt with thereservation in appointment as per Article 16(4) of the Constitutionof India, apart from reservation relating to post graduate courseadmission in medical education under Article 15. The Supreme Courtwas dealing with Article 15(4) of the Constitution of India at thestage of admission to postgraduate medical courses where lesserqualifying marks or no marks were provided for members of SC/ST inthe following words:"20. We are, however, not directly concerned with thequestion of reservations at the postgraduate level inMedicine. We are concerned with another special provision https://hcservices.ecourts.gov.in/hcservices/ under Article 15(4) made at the stage of admission to thepostgraduate medical courses, namely, providing for lesserqualifying marks or no qualifying marks for the members ofthe Scheduled Castes and Scheduled Tribes for admission tothe postgraduate medical courses. Any special provisionunder Article 15(4) has to balance the importance ofhaving, at the higher levels of education, students who aremeritorious and who have secured admission on their merit,as against the social equity of giving compensatory benefitof admission to the Scheduled Caste and Scheduled Tribecandidates who are in a disadvantaged position. The samereasoning which propelled this Court to underlinereasonableness of a special provision and the nationalinterest in giving at the highest level of education, thefew seats at the top of the educational pyramid only on thebasis of merit and excellence, applies equally to a specialprovision in the form of lower qualifying marks for thebackward at the highest levels of education.45. It was, in that context, the Supreme Court denounced theconcept of reservation for admission in super speciality courses asfollows:23. This Court has repeatedly said that at the levelof superspecialisation there cannot be any reservationbecause any dilution of merit at this level would adverselyaffect the national goal of having the best possible peopleat the highest levels of professional and educationaltraining. At the level of a superspeciality, something morethan a mere professional competence as a doctor isrequired. A superspecialist acquires expert knowledge inhis speciality and is expected to possess exceptionalcompetence and skill in his chosen field, where he may evenmake an original contribution in the form of new innovativetechniques or new knowledge to fight diseases. It is in thepublic interest that we promote these skills. Such highdegrees of skill and expert knowledge in highly specialisedareas, however, cannot be acquired by anyone or everyone.For example, specialised sophisticated knowledge and skilland ability to make right choices of treatment in criticalmedical conditions and even the ability to innovate anddevise new lines of treatment in critical situations,requires high levels of intelligent understanding ofmedical knowledge or skill and a high ability to learn fromtechnical literature and from experience. These highabilities are also required for absorbing highlyspecialised knowledge which is being imparted at thislevel. It is for this reason that it would be detrimentalto the national interest to have reservations at thisstage. Opportunities for such training are few and it is in https://hcservices.ecourts.gov.in/hcservices/ the national interest that these are made available tothose who can profit from them the most viz. the bestbrains in the country, irrespective of the class to whichthey belong.46. In fact, in the said paragraph, the Supreme Court hasclearly approved the importance of experience for high levelintelligent understanding of medical knowledge or skill. In thecontext of constitutionality of the State to make law in the form ofnorms for admission the Supreme Court has taken note of Entry 66 ofList-I and Entry 25 of List III (concurrent list) and in the contextof standard of education held as follows:"35. The legislative competence of Parliament and thelegislatures of the States to make laws under Article 246is regulated by the VIIth Schedule to the Constitution. Inthe VIIth Schedule as originally in force, Entry 11 of ListII gave to the State an exclusive power to legislate on“education including universities, subject to theprovisions of Entries 63, 64, 65 and 66 of List Iand Entry 25 of List III”.Entry 11 of List II was deleted and Entry 25 of List IIIwas amended with effect from 3-1-1976 as a result of theConstitution 42nd Amendment Act of 1976. The present Entry25 in the Concurrent List is as follows:“25. Education, including technical education,medical education and universities, subject tothe provisions of Entries 63, 64, 65 and 66 ofList I; vocational and technical training oflabour.”Entry 25 is subject, inter alia, to Entry 66 of List I.Entry 66 of List I is as follows:“66. Coordination and determination of standardsin institutions for higher education or researchand scientific and technical institutions.”Both the Union as well as the States have the power tolegislate on education including medical education,subject, inter alia, to Entry 66 of List I which deals withlaying down standards in institutions for higher educationor research and scientific and technical institutions asalso coordination of such standards. A State has,therefore, the right to control education including medicaleducation so long as the field is not occupied by any Unionlegislation. Secondly, the State cannot, while controllingeducation in the State, impinge on standards ininstitutions for higher education. Because this isexclusively within the purview of the Union Government. https://hcservices.ecourts.gov.in/hcservices/ Therefore, while prescribing the criteria for admission tothe institutions for higher education including highermedical education, the State cannot adversely affect thestandards laid down by the Union of India under Entry 66 ofList I. Secondly, while considering the cases on thesubject it is also necessary to remember that from 1977,education, including, inter alia, medical and universityeducation, is now in the Concurrent List so that the Unioncan legislate on admission criteria also. If it does so,the State will not be able to legislate in this field,except as provided in Article 254.36. It would not be correct to say that the norms foradmission have no connection with the standard ofeducation, or that the rules for admission are covered onlyby Entry 25 of List III. Norms of admission can have adirect impact on the standards of education. Of course,there can be rules for admission which are consistent withor do not affect adversely the standards of educationprescribed by the Union in exercise of powers under Entry66 of List I. For example, a State may, for admission tothe postgraduate medical courses, lay down qualificationsin addition to those prescribed under Entry 66 of List I.This would be consistent with promoting higher standardsfor admission to the higher educational courses. But anylowering of the norms laid down can and does have anadverse effect on the standards of education in theinstitutes of higher education. Standards of education inan institution or college depend on various factors. Someof these are:(1)the calibre of the teaching staff;(2)a proper syllabus designed to achieve a highlevel of education in the given span of time;(3)the student-teacher ratio;(4)the ratio between the students and the hospitalbeds available to each student;(5)the calibre of the students admitted to theinstitution;(6)equipment and laboratory facilities, or hospitalfacilities for training in the case of medical colleges;(7)adequate accommodation for the college and theattached hospital; and(8)the standard of examinations held including themanner in which the papers are set and examined and theclinical performance is judged. https://hcservices.ecourts.gov.in/hcservices/

37. While considering the standards of education inany college or institution, the calibre of students who areadmitted to that institution or college cannot be ignored.If the students are of a high calibre, training programmescan be suitably moulded so that they can receive themaximum benefit out of a high level of teaching. If thecalibre of the students is poor or they are unable tofollow the instructions being imparted, the standard ofteaching necessarily has to be lowered to make themunderstand the course which they have undertaken; and itmay not be possible to reach the levels of education andtraining which can be attained with a bright group.Education involves a continuous interaction between theteachers and the students. The pace of teaching, the levelto which teaching can rise and the benefit which thestudents ultimately receive, depend as much on the calibreof the students as on the calibre of the teachers and theavailability of adequate infrastructural facilities. Thatis why a lower student-teacher ratio has been consideredessential at the levels of higher university education,particularly when the training to be imparted is a highlyprofessional training requiring individual attention andon-hand training to the pupils who are already doctors andwho are expected to treat patients in the course of doingtheir postgraduate courses."47. The Supreme Court in categorical terms denounced the lawlaid down earlier that the power of Medical Council of India undersection 20 of the Medical Council of India Act, 1956 in prescribingminimum standards for medical education in India at postgraduatelevel was only advisory and held that it is mandatory and binding onthe Universities in the following terms:"55. We do not agree with this interpretation put onSection 20 of the Indian Medical Council Act, 1956. Section20(1) (set out earlier) is in three parts. The first partprovides that the Council may prescribe standards ofpostgraduate medical education for the guidance ofuniversities. The second part of sub-section (1) says thatthe Council may advise universities in the matter ofsecuring uniform standards for postgraduate medicaleducation throughout. The last part of sub-section (1)enables the Central Government to constitute from amongstthe members of the Council, a Postgraduate MedicalEducation Committee. The first part of sub-section (1)empowers the Council to prescribe standards of postgraduatemedical education for the guidance of universities.Therefore, the universities have to be guided by thestandards prescribed by the Medical Council and must shape https://hcservices.ecourts.gov.in/hcservices/ their programmes accordingly. The scheme of the IndianMedical Council Act, 1956 does not give an option to theuniversities to follow or not to follow the standards laiddown by the Indian Medical Council. For example, themedical qualifications granted by a university or a medicalinstitution have to be recognised under the Indian MedicalCouncil Act, 1956. Unless the qualifications are sorecognised, the students who qualify will not be able topractise. Before granting such recognition, a power isgiven to the Medical Council under Section 16 to ask forinformation as to the courses of study and examinations.The universities are bound to furnish the information sorequired by the Council. The Postgraduate Medical Committeeis also under Section 17, entitled to appoint MedicalInspectors to inspect any medical institution, college,hospital or other institution where medical education isgiven or to attend any examination held by any universityor medical institution before recommending the medicalqualification granted by that university or medicalinstitution. Under Section 19, if a report of the Committeeis unsatisfactory the Medical Council may withdrawrecognition granted to a medical qualification of anymedical institution or university concerned in the mannerprovided in Section 19. Section 19-A enables the Council toprescribe minimum standards of medical education requiredfor granting recognised medical qualifications other thanpostgraduate medical qualifications by the universities ormedical institutions, while Section 20 gives a power to theCouncil to prescribe minimum standards of postgraduatemedical education. The universities must necessarily beguided by the standards prescribed under Section 20(1) iftheir degrees or diplomas are to be recognised under theMedical Council Act. We, therefore, disagree with andoverrule the finding given in Ajay Kumar Singh v. State ofBihar to the effect that the standards of postgraduatemedical education prescribed by the Medical Council ofIndia are merely directory and the universities are notbound to comply with the standards so prescribed.48. Ultimately, the Supreme Court has held that the reservationin the context of Articles 15(4) and 16(4) of the Constitution ofIndia read with Article 335 is not permissible in the followingwords:67. The ambit of special provisions under Article 15(4) has already been considered by us. While the object ofArticle 15(4) is to advance the equality principle byproviding for protective discrimination in favour of theweaker sections so that they may become stronger and beable to compete equally with others more fortunate, one https://hcservices.ecourts.gov.in/hcservices/ cannot also ignore the wider interests of society whiledevising such special provisions. Undoubtedly, protectivediscrimination in favour of the backward, includingScheduled Castes and Scheduled Tribes is as much in theinterest of society as the protected groups. At the sametime, there may be other national interests, such aspromoting excellence at the highest level and providing thebest talent in the country with the maximum availablefacilities to excel and contribute to society, which havealso to be borne in mind. Special provisions must strike areasonable balance between these diverse nationalinterests.68. In the case of Dr Jagadish Saran v. Union of Indiathis Court observed that at the highest scales ofspeciality, the best skill or talent must be hand-picked byselection according to capability. Losing a potential greatscientist or technologist would be a national loss. That iswhy the Court observed that the higher the level ofeducation the lesser should be the reservation. There aresimilar observations in Dr Pradeep Jain v. Union of India.Undoubtedly, Dr Pradeep Jain v. Union of India did not dealwith reservation in favour of the Scheduled Castes and theScheduled Tribes. It dealt with reservation in favour ofresidents and students of the same University. Neverthelessit correctly extended the principle laid down inDr.Jagadish Saran v. Union of India to these kinds ofreservation also, holding that at the highest levels ofmedical education excellence cannot be compromised to thedetriment of the nation. Admissions to the highestavailable medical courses in the country at thesuperspeciality levels, where even the facilities fortraining are limited, must be given only on the basis ofcompetitive merit. There can be no relaxation at thislevel.69. Indra Sawhney v. Union of India has also observedthat in certain positions at the highest level merit alonecounts. In specialities and superspecialities in Medicine,merit alone must prevail and there should not be anyreservation of posts. The observations in Indra Sawhney v.Union of India were in respect of posts in the specialitiesand superspecialities in Medicine. Nevertheless, the sameprinciple applies to seats in the specialities andsuperspecialities in Medicine. Moreover, study and trainingat the level of specialities and superspecialities inMedicine involve discharging the duties attached to certainspecified medical posts in the hospitals attached to themedical institutions giving education in specialities andsuperspecialities. Even where no specific posts are createdor kept for the doctors studying for the superspecialities https://hcservices.ecourts.gov.in/hcservices/ or specialities, the work which they are required to do inthe hospitals attached to these institutions is equivalentto the work done by the occupants of such posts in thathospital. In this sense also, some of the considerationsunder Article 16(4) read with Article 335 rub off onadmissions of candidates who are given seats for specialityand superspeciality courses in Medicine. Even otherwiseunder Article 15(4) the special provisions which are madeat this level of education have to be consistent with thenational interest in promoting the highest levels ofefficiency, skill and knowledge amongst the best in thecountry so that they can contribute to national progressand enhance the prestige of the nation. The same view hasbeen upheld in Fazal Ghafoor (Dr) v. Union of India andMohan Bir Singh Chawla v. Panjab University."49. The provisions of the Constitution which were construed bythe Supreme Court, viz., Articles 15(4) and 16(4) are as follows:"Article 15.Prohibition of discrimination on grounds ofreligion, race, caste, sex or place of birth.-(1)to (3) xxxx(4)Nothing in this article or in clause (2) of article 29shall prevent the State from making any special provisionfor the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castesand the Scheduled Tribes."Article 16. Equality of opportunity in matters ofpublic employment.- (1)to (3) xxx(4) Nothing in this article shall prevent the State frommaking any provision for the reservation of appointments orposts in favour of any backward class of citizens which, inthe opinion of the State, is not adequately represented inthe services under the State."Those provisions of the Constitution were construed in the matter ofreservation and dilution of merit wherein cut off percentage of marksfor reserved candidates were sought to be reduced for admission topostgraduate medical education. 50. In State of M.P. and Others v. Gopal D.Tirthani (AIR 2003 SC2952) the Supreme Court held that allocation of 20% of seats by theState of M.P. in post-graduation in the universities for in servicecandidates does not amount to reservation. The Supreme Court hasalso held that there can be only one common entrance examination fordetermining the eligibility for post-graduation and the relevantportion of the judgment is as follows: https://hcservices.ecourts.gov.in/hcservices/ "25. The eligibility test, called the entrance test orthe pre-PG test, is conducted with dual purposes. Firstly,it is held with the object of assessing the knowledge andintelligence quotient of a candidate whether he would beable to prosecute post-graduate studies if allowed anopportunity of doing so; secondly, it is for the purpose ofassessing the merit inter se of the candidates which is ofvital significance at the counselling when it comes toalloting the successful candidates to different disciplineswherein the seats are limited and some disciplines areconsidered to be more creamy and are more coveted than theothers. The concept of a minimum qualifying percentagecannot, therefore, be given a compete go-by. If at allthere can be departure, that has to be minimal and that tooonly by approval of experts in the filed of medicaleducation, which for the present are available as a body inthe Medical Council of India.26. The Medical Council of India, for the present,insists, through its Regulations, on a common entrance testbeing conducted whereat the minimum qualifying marks wouldbe 50%. The State of Madhya Pradesh must comply with therequirments of the Regultions framed by the Medical Councilof India and hold a common entrance test even if there aretwo separate channels of entry and allow clearance only tosuch canidates who secure the minimum qualifying marks asprescribed by the MCI Regulations. If the State has a casefor making a departure from such rule or for carving out anexception in favour of any classification then it is forthe State to represent to the Central Government and/orMedical Council of India and make out a case ofjustification consistently with the fore-quoted observationof this Court in Dayanand Medical College and Hospital'scase.27. The in-service cnaidates may have been away fromacademics and theories because of being in-service. Stillthey need to be assessed as eligible for entrance in P.G.For taking up such examination, they must either keepupdating themselves regularly or concentrate on studiespreparatory to entrance examinations but withoutsacrificing or compromising with their obligations to thepeople whom they are meant to serve on account of being inState services."51. The decisions in all those cases have been rendered in thecontext of dilution of eligibility criteria for admission topostgraduate courses, in the light of clause 9 of the Medical Councilof India Regulations or in the context of constitutional reservationunder Articles 15(4) or 16(4) of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/

52. On the facts of the present case when the experienceacquired by a medical practitioner after completion of hispostgraduate course is taken into account subject to the maximum of10 marks, that is, one mark for every completed year for 10 years,the same cannot be treated as a reservation. It cannot be statedthat after completing post-graduation in medicine the medicalpractitioner would keep quiet without practising. As observed by theSupreme Court in the above said cases, the experience for aprofessional doctor is certainly one of the criteria for decidingmerit and that cannot be said to be either extraneous or reservationdiluting the merit of the candidate. A super speciality course iscertainly a class by itself and cannot be compared with post-graduation in medicine. 53. In so far as the admission to super speciality course isconcerned, the eligibility criterion is completion of post-graduationin the discipline, which is not in dispute. It is presumed that apostgraduate doctor in a particular discipline as an expert in thefield can acquire experience after post-graduation and the samecannot be said to be other than merit. In a profession when a persondeals with a specialised field, he acquires day-to-day knowledge andlearns the latest developments in the particular field to establishhis career. Therefore, the contention of the learned senior counselfor the petitioners that by adopting no guidelines or no method forselecting meritorious candidates among postgraduate doctors, there ispossibility of candidates with post-graduation, without merit beingselected for super speciality courses is totally unfounded and notacceptable. As held by the Supreme Court in Dr.Preeti Srivastavs v.State of M.P., cited supra, it is the innovation of new techniques inthe medical profession field in fighting against diseases, that makesa postgraduate doctor a very able person than a mere postgraduatedegree holder in medicine who comes out of the college. When theterm, 'merit' is used, it does not always mean the academicqualifications alone, especially in medical profession and otherprofessions like law.54. In K.K.Parmar vs. H.C.of Gujarat through Registrar andothers [(2006)5 SCC 789], of course, while dealing with the promotionof High Court employees, it was held that the merit cannot be decidedby academic qualifications alone. The relevant passage of thejudgment is as follows:" Merit of a candidate is not his academic qualification.It is sum total of various qualities. It reflects theattributes of an employee. It may be his academicqualification. He might have achieved certain distinctionin the university. It may involve the character, integrityand devotion to duty of the employee. The manner in whichhe discharges his final duties would also be a relevantfactor." https://hcservices.ecourts.gov.in/hcservices/

55. In Pre PG Medical Sangharsh Committee v. Bajrang Soni (Dr)[(2001) 8 SCC 694], while holding that in service candidatesconstitute a distinct class by themselves, the Supreme Court heldthat the mere academic excellence of a doctor is of no warrant ofefficiency of his practice. The Supreme Court also held thatreduction of minimum qualifying marks for in service candidates isvalid and not arbitrary or discriminatory. By referring to anearlier judgment in K.Duraiswamy vs. State of Tamilnadu [(2001) 2 SCC538], the Supreme Court while dealing with in service candidates'reservation, held as follows:"6. In Ajay Kumar Singh v. State of Bihar this Courtheld that the Indian Medical Council Act, 1956 did notempower the Council to regulate or prescribe qualificationsor conditions for admission to postgraduate courses andthat regulation and admission to such medical courses isnot only incidental but an integral part of the power ofthe States, which establish and maintain such institutionsout of public funds and the State could always regulate theadmission policy while adhering to the standards determinedby the Medical Council. The learned Judges, who delved intothe matter at length, also highlighted the vital fact thatmere academic performance is no guarantee of efficiency inpractice in the field of Medicine and consequently, it iswrong to presume that a doctor with good academic record isbound to prove a better doctor in practice. In yet anotherdecision reported in K. Duraisamy v. State of T.N.thoughrendered in the context of working out the reservations andthe manner stipulated therefor, by the Government, the veryquestion about the power of the Government also came up forconsideration and one of us (Raju, J.), speaking for theBench, while applying the earlier decision in Dhilipkumar1observed as follows: (SCC p.545, paras 8-9)“8. That the Government possesses the rightand authority to decide from what sources theadmissions in educational institutions or toparticular disciplines and courses therein haveto be made and that too in what proportion, iswell established and by now a proposition wellsettled, too. It has been the consistent andauthoritatively settled view of this Court thatat the superspeciality level, in particular, andeven at the postgraduate level reservations ofthe kind known as ‘protective discrimination’ infavour of those considered to be backward shouldbe avoided as being not permissible. Reservation,even if it be claimed to be so in this case, for https://hcservices.ecourts.gov.in/hcservices/ and in favour of the in-service candidates,cannot be equated or treated on par with communalreservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of theirimplementation to ensure such reservations to bethe minimum by not counting those selected inopen competition on the basis of their own meritas against the quota reserved on communalconsiderations.9. Properly speaking, in these cases, we areconcerned with the allocation of seats foradmission in the form of a quota amongst in-service candidates, on the one hand, and non-service or private candidates on the other andthe method or manner of working out in practicethe allocation of seats among the members of therespective category. Could the State Governmenthave legitimately made a provision allocating 50%of seats exclusively in favour of the in-servicecandidates and keep open the avenue forcompetition for them in respect of the remaining50% along with others, denying a fair contest inrelation to a substantial or sizeable number ofother candidates, who are not in service and whofall under the category of non-servicecandidates, will itself be open to serious doubt.One such attempt seems to have been put in issuebefore the Madras High Court which held thatreservation in favour of the in-servicecandidates for the academic year 1992-93 shouldbe confined to 50% and awarding of two additionalmarks, instead of one additional mark for eachcompleted year of service in primary healthcentres was unconstitutional and when the matterwas brought to this Court, in the decisionreported in State of T.N. v. T. Dhilipkumar1 thedecision of the High Court has been upheld. ThisCourt also further observed that the Governmentshould appoint a highly qualified committee todetermine from year to year what, in fact, shouldbe the percentage-wise reservation required forthe in-service candidates, having regard to thethen prevailing situation and that the percentageof fifty per cent shall if found appropriate, bereduced.”7. xxxx8. The learned counsel for the appellants, who filedthe appeals with the permission of the Court, also sought https://hcservices.ecourts.gov.in/hcservices/ to challenge the conclusion arrived at by the learnedSingle Judge in repelling the challenge made to thereduction of the minimum cut-off marks for selection of thein-service candidates from 50% to 33%. Apart from thetenability of the objection taken by Shri Sushil KumarJain, learned counsel appearing for the respondent privatecandidates, that if there was no challenge made to thisreasoning before the Division Bench of the High Court, itis not permissible to take such a stand in this Court. Weare also of the view, on the merits of the claim itself,that there is no substance in the same. It is not incontroversy that during the academic years in question,there was no stipulation by the Medical Council of India ofany minimum eligibility marks to be secured in the entranceexamination for admission to postgraduate courses. Thoughit is said that in 2000 such a stipulation has been made,for the obvious reason that during the years under ourconsideration there is no such stipulation, the challengein this regard does not merit our consideration oracceptance, leave alone the question as to the efficacy orbinding nature of the said stipulation, which we do notpropose to adjudicate upon in these cases. That apart, asrightly pointed out in one of the judgments of this Courtnoticed above, mere theoretical excellence or merit aloneis no sufficient indicia of the qualitative merits of thecandidates in the field of actual practice and application.The doctors, who are in-service candidates in variousmedical institutions run and maintained by the Governmentor government departments, have wide area and horizon ofexposure on the practical side and they may not have therequired extra time to keep themselves afresh on thetheoretical side like an open candidate who may havesufficient time at his disposal to plod through books. Thein-service candidates in contrast to the fresh or opencandidates have to spend much of their time on attendingand treating the patients in the hospitals they servegaining excellence on the practical side and, in our view,they would constitute a distinct class by themselves to begiven a special treatment and no grievance can be made outon the ground that the minimum eligibility marks for theirselection in respect of seats earmarked for them shouldalso be the same as that of the fresh or open candidates.We could see no discrimination or arbitrariness involved inthe special provision made to meet a just and appropriateneed in public interest.56. In Suryanarayan Sahu v. Council of Scientific & IndustrialResearch [(1998) 2 SCC 162], of course, while dealing with servicelaw in respect of equal pay for equal work, the Supreme Court byreferring to its earlier judgment in Randhir Singh vs. Union of https://hcservices.ecourts.gov.in/hcservices/ India [(1982) 1 SCC 618] and quoting paragraph 7 of the saidjudgment, held as follows:"This Court further held thus:(SCC p.622, para 7)"It is well known that there can be and thereare different grades in service, with varyingqualifications for entry into a particular grade,the higher grade often being a promotional avenuefor officers of the lower grade. The higherqualifications for the higher grade, which may beeither academic qualifications or experience basedon length of service, reasonably sustain theclassification of the officers into two grades withdifferent scales of pay. The principle of 'equalpay for equal work' would be an abstract doctrinenot attracting Article 14 if sought to be appliedto them."15. In State of U.P. vs. J.P.Chaurasia (1989) 1 SCC121 again considering the question of parity in employmentfor the purpose of pay ficxation, this Court said that inservice matters the merit and experience could be theproper basis for classification to promote efficiency inadministatration and that he or she learns also byexperience asmuch as by other means and further that itcould not be denied that the quality of work performed bypersons of longer experience was superioer than the work ofnewcomers. The Court was of the view that this principlewas even recognised in Randhir Singh case. The Court,therefore, held that classification based on experience wasa reasonable qulaification and that it had a rational nexusto the object thereof and to hold otherwise, it would bedetrimental to the interest of the service itself. ...."57. In Dr.Jagdish Saran vs. Union of India (AIR 1980 SC 820),the Supreme Court held that rural service experience for a medicalpractitioner would form part of merit and excellence. V.R.KrishnaIyer,J. in forthright expression explained the merit and excellenceas follows:"21. Before moving to the next aspect we may touch upona slightly different angle which opens up a new point ofview. What is merit or excellence? If potential for ruralservice or aptitude for rendering medical attention amongbackward people is a criterion of merit – and it,undoubtedly, is in a land of sickness and misery, neglectand penury, wails and tears – then, surely, belonging to auniversity catering to a deprived region is a plus point ofmerit. Excellence is composite and the heart and its https://hcservices.ecourts.gov.in/hcservices/ sensitivity are as precious in the scale of educationalvalues as the head and its creativity and social medicinefor the common people is more relevant than peakperformance in freak case. Marks on this basis will takeus to the same preference as reservations for in-universitycandidates. Here we are not prefering one with less marks,but adopting a holistic manner of marking linked up withbackward settings, institutional orientation and/or likeconsideration."58. In Sanjay Ahlawat vs. Maharishi Dayananad University, Rohtak[1995 AIR SCW 228] the Supreme Court held that the award of 10 extramarks to graduates in respect of postgraduate courses in the State ofHaryana is not discriminatory and violative of Article 14 of theConstitution of India.59. Again, in Gujarat University vs. Rajiv Gopinath Bhatt[(1996) 4 SCC 60] the Apex Court has held that in the merit list whenfirst preference was given to the students from the same Universityand second preference was given to candidates of other Universitiesof the State and thereafter on the basis of such merit list,vacancies were filled up, the same was termed as a rule ofpreference which is not violative of Article 14 of the Constitutionof India. 60. Even though institutional preference was held to beunconstitutional in AIIMS Students Union v. AIIMS [(2002) 1 SCC 426],in the peculiar circumstances of the case, it was held in SaurabhChaudri v. Union of India [(2003) 11 SCC 146] that institutionalpreference to the extent of 25% of students instead of 33% could beaccepted. The relevant portion of the judgment is as follows:"59. The discussions on this topic would remainincomplete if we fail to notice a recent decision of thisCourt in AIIMS Students’ Union rendered by one of us,Hon’ble Lahoti, J. wherein this Court, keeping in view thepeculiar situation obtaining in the case of AIIMS, heldinstitutional reservation to be unconstitutional. It,however, keeping in view the necessity of givinginstitutional preference to students who had studied fromAIIMS, directed that such preference be given to the extentof 25% of students instead of 33%. However, keeping in viewthe fact that there were forty seats in MBBS course whereas132 seats in postgraduate courses, the institutionalpreference to be given to the students of AIIMS came toabout 82.5%." 61. Therefore, the hierarchy of judgments show that byawarding marks for experience to doctors after completion ofpostgraduate course cannot be said to be dilution of merit for https://hcservices.ecourts.gov.in/hcservices/ admission to super speciality courses. On the other hand, it is notonly to strike balance between fresh candidates and experienceddoctors, but also to make better experienced doctors afterpostgraduate degree to undergo super speciality courses it would helpthe society at large. If such rich experienced doctors who havegained experience by practising after post-graduation, acquire superspeciality degrees, certainly it would be beneficial to the patientsat large and therefore, awarding of such marks for experience canneither be treated as a reservation, nor a classification among theclasses of persons and the same is a method of identifying merit asgaining experience is incidental to academic excellence inprofessional fields.62. In such circumstances, the contention that proper guidelinesshould be laid down to avoid arbitrariness in the matter of selectioneven among such experienced candidates is fallacious. As I havestated above, when a person completes his postgraduate degree inmedicine, it is futile to presume that such person would keep quietwithout practising or without doing academic teaching in medicalinstitutions. When a professional person completes his course, thenormal presumption is that he would be practising. Simply becausea person may not have lucrative practice, it does not mean that heshould be academically or in experience underestimated. In otherwords, imposing guidelines to choose candidates among experienceddoctors would some time result in arbitrariness in the matter ofselection. In such view of the matter, simply because there is noguidelines for the purpose of deciding about experience, it cannot besaid that there is possibility for discrimination or arbitrariness. 63. One other issue that has been raised in this case is aboutthe legitimate expectation. The principle of legitimate expectationitself does not confer any right on a person. In fact, the concepthas been explained as a circumstance where by the conduct of apublic authority or any other person, another person is made tobelieve that a particular situation would be in existence andthereafter, when such position is altered to his disadvantage, therecan be a complaint of legitimate expectation. As stated above, theprinciple of legitimate expectation is not a ground for granting anyrelief to any one. The person who relies on the doctrine oflegitimate expectation must prove that he acted upon therepresentation and the denial of expectation has resulted to hisdetriment. The concept of legitimate expectation has been explainedin detail by the Supreme Court and the Supreme Court held that therelief to be granted under the legitimate expectation is verylimited. The said principle has been explained in detail in SethiAuto Service Station v. Delhi Development Authority [(2009) 1 SCC180] in the following words: "24. The protection of legitimate expectations, aspointed out in De Smith’s Judicial Review (6th Edn.), (Para https://hcservices.ecourts.gov.in/hcservices/ 12-001), is at the root of the constitutional principle ofthe rule of law, which requires regularity, predictabilityand certainty in the Government’s dealings with the public.The doctrine of legitimate expectation and its impact inthe administrative law has been considered by this Court ina catena of decisions but for the sake of brevity we do notpropose to refer to all these cases. Nevertheless, in orderto appreciate the concept, we shall refer to a fewdecisions. 25. At this juncture, we deem it necessary to refer toa decision by the House of Lords in Council of CivilService Unions v. Minister for Civil Service, a locusclassicus on the subject, wherein for the first time anattempt was made to give a comprehensive definition to theprinciple of legitimate expectation. Enunciating the basicprinciples relating to legitimate expectation, Lord Diplockobserved that for a legitimate expectation to arise, thedecision of the administrative authority must affect suchperson either (a) by altering rights or obligations of thatperson which are enforceable by or against him in privatelaw, or (b) by depriving him of some benefit or advantagewhich either: (i) he has in the past been permitted by thedecision-maker to enjoy and which he can legitimatelyexpect to be permitted to continue to do until somerational ground for withdrawing it has been communicated tohim and he has been given an opportunity to commentthereon, or (ii) he has received assurance from thedecision-maker that they will not be withdrawn withoutfirst giving him an opportunity of advancing reasons forcontending that they should be withdrawn.26. In Attorney General of Hong Kong v. Ng Yuen Shiu,a leading case on the subject, Lord Fraser said: (All ERp.351g-h)“… when a public authority has promised to followa certain procedure, it is in the interest ofgood administration that it should act fairly andshould implement its promise, so long asimplementation does not interfere with itsstatutory duty.”27. Explaining the nature and scope of the doctrine oflegitimate expectation, in Food Corporation of India v.Kamdhenu Cattle Feed Industries, a three-Judge Bench ofthis Court had observed thus: (SCC p.76, para 8)“8. The mere reasonable or legitimateexpectation of a citizen, in such a situation,may not by itself be a distinct enforceableright, but failure to consider and give due https://hcservices.ecourts.gov.in/hcservices/ weight to it may render the decision arbitrary,and this is how the requirement of dueconsideration of a legitimate expectation formspart of the principle of non-arbitrariness, anecessary concomitant of the rule of law. Everylegitimate expectation is a relevant factorrequiring due consideration in a fair decision-making process. Whether the expectation of theclaimant is reasonable or legitimate in thecontext is a question of fact in each case.Whenever the question arises, it is to bedetermined not according to the claimant’sperception but in larger public interest whereinother more important considerations may outweighwhat would otherwise have been the legitimateexpectation of the claimant. A bona fide decisionof the public authority reached in this mannerwould satisfy the requirement of non-arbitrariness and withstand judicial scrutiny.The doctrine of legitimate expectation getsassimilated in the rule of law and operates inour legal system in this manner and to thisextent.”28. The concept of legitimate expectation again cameup for consideration in Union of India v. HindustanDevelopment Corpn. Referring to a large number of foreignand Indian decisions, including in Council of Civil ServiceUnions and Kamdhenu Cattle Feed Industries and elaboratelyexplaining the concept of legitimate expectation, it wasobserved as under: (Hindustan Development Corpn. case, SCCp.549, para 35)“35. … If a denial of legitimate expectationin a given case amounts to denial of rightguaranteed or is arbitrary, discriminatory,unfair or biased, gross abuse of power orviolation of principles of natural justice, thesame can be questioned on the well-known groundsattracting Article 14 but a claim based on merelegitimate expectation without anything morecannot ipso facto give a right to invoke theseprinciples. It can be one of the grounds toconsider but the court must lift the veil and seewhether the decision is violative of theseprinciples warranting interference. It dependsvery much on the facts and the recognised generalprinciples of administrative law applicable tosuch facts and the concept of legitimateexpectation which is the latest recruit to a long https://hcservices.ecourts.gov.in/hcservices/ list of concepts fashioned by the courts for thereview of administrative action, must berestricted to the general legal limitationsapplicable and binding the manner of the futureexercise of administrative power in a particularcase. It follows that the concept of legitimateexpectation is ‘not the key which unlocks thetreasury of natural justice and it ought not tounlock the gates which shuts the court out ofreview on the merits’, particularly when theelement of speculation and uncertainty isinherent in that very concept.”Taking note of the observations of the Australian HighCourt in Attorney General for New South Wales v. Quinn that“to strike down the exercise of administrative power solelyon the ground of avoiding the disappointment of thelegitimate expectations of an individual would be to setthe courts adrift on a featureless sea of pragmatism”,speaking for the Bench, K. Jayachandra Reddy, J. said thatthere are stronger reasons as to why the legitimateexpectation should not be substantively protected than thereasons as to why it should be protected. The cautionsounded in the said Australian case that the courts shouldrestrain themselves and restrict such claims duly to thelegal limitations was also endorsed.29. Then again in National Buildings ConstructionCorpn. v. S. Raghunathan, a three-Judge Bench of this Courtobserved as under: (SCC p.75, para 18)“18. The doctrine of ‘legitimate expectation’has its genesis in the field of administrativelaw. The Government and its departments, inadministering the affairs of the country, areexpected to honour their statements of policy orintention and treat the citizens with fullpersonal consideration without any iota of abuseof discretion. The policy statements cannot bedisregarded unfairly or applied selectively.Unfairness in the form of unreasonableness isakin to violation of natural justice. It was inthis context that the doctrine of ‘legitimateexpectation’ was evolved which has today become asource of substantive as well as proceduralrights. But claims based on ‘legitimateexpectation’ have been held to require relianceon representations and resulting detriment to theclaimant in the same way as claims based onpromissory estoppel.” https://hcservices.ecourts.gov.in/hcservices/

30. xxxx31. Very recently in Jitendra Kumar v. State ofHaryana it has been reiterated that a legitimateexpectation is not the same thing as an anticipation. It isdistinct and different from a desire and hope. It is basedon a right. It is grounded in the rule of law as requiringregularity, predictability and certainty in theGovernment’s dealings with the public and the doctrine oflegitimate expectation operates both in procedural andsubstantive matters.32. An examination of the aforenoted few decisionsshows that the golden thread running through all thesedecisions is that a case for applicability of the doctrineof legitimate expectation, now accepted in the subjectivesense as part of our legal jurisprudence, arises when anadministrative body by reason of a representation or bypast practice or conduct aroused an expectation which itwould be within its powers to fulfil unless some overridingpublic interest comes in the way. However, a person whobases his claim on the doctrine of legitimate expectation,in the first instance, has to satisfy that he has relied onthe said representation and the denial of that expectationhas worked to his detriment. The Court could interfere onlyif the decision taken by the authority was found to bearbitrary, unreasonable or in gross abuse of power or inviolation of principles of natural justice and not taken inpublic interest. But a claim based on mere legitimateexpectation without anything more cannot ipso facto give aright to invoke these principles.33. It is well settled that the concept of legitimateexpectation has no role to play where the State action isas a public policy or in the public interest unless theaction taken amounts to an abuse of power. The court mustnot usurp the discretion of the public authority which isempowered to take the decisions under law and the court isexpected to apply an objective standard which leaves to thedeciding authority the full range of choice which thelegislature is presumed to have intended. Even in a casewhere the decision is left entirely to the discretion ofthe deciding authority without any such legal bounds and ifthe decision is taken fairly and objectively, the courtwill not interfere on the ground of procedural fairness toa person whose interest based on legitimate expectationmight be affected. Therefore, a legitimate expectation canat the most be one of the grounds which may give rise tojudicial review but the granting of relief is very muchlimited. (Vide Hindustan Development Corpn.)" https://hcservices.ecourts.gov.in/hcservices/

64. Applying the principle of legitimate expectation as detailedabove, on the facts and circumstances of the case, when it is thepolicy of the Government to award marks for experience gained afterpostgraduate degree in medicine subject to the maximum of 10 marksand to dispense with the experience in rural service for admission tosuper speciality courses and that has been explained in detail by wayof G.O. and also by the subsequent prospectus based on which thepetitioners have applied after having known about the contents of theprospectus fully, it is not open to the petitioners now to raise thedoctrine of legitimate expectation for the relief sought for. 65. Lastly, as it is contended by Mr.R.Sureshkumar, learnedcounsel appearing for the selected candidates who have been impleadedas respondents in three writ petitions as narrated above, it is notas if those selected candidates are without any merit. The selectedcandidate for M.Ch.( Surgical Gastro Enterology) who is the 4threspondent in W.P.No.14855 of 2009 has not only completed his M.S.(General Surgery) in 2008, but also passed FRCS, apart from workingin the Hospital at U.K. for six years from 2003 to 2008 andthereafter he has been working in Rajarathnam Institute of GastroIntestinal Diseases, Chennai from 2008 and for his long and usefulexperience gained by him, he has been given 9 marks out of 10 whichcannot be termed as arbitrary or detrimental to the interest ofeither the petitioner or public at large, by providing an opportunityto him to join in super speciality course. That is also the case inrespect of 4th respondent in W.P.No.16226 of 2009, who had completedhis M.D. (Paediatrics) in 2005 and even before that, but aftercompletion of his M.B.B.S., he worked in Primary Health Centres from1999 to 2002 and after completing postgraduate course in medicine hewas working in taluk Headquarters and he is presently working asSenior Resident Paediatrician in Stanley Medical College Hospital andfor the services rendered by him after completion of his P.G. coursehe has been given four marks which can also not be termed asarbitrary or against the public interest. In fact, as a servicecandidate, he comes in the merit list. While the writ petitionerhimself got only 78.75 marks out of 90 without any experience as afresh candidate, the 4th respondent obtained 76.50 out of 90 marks andby adding four marks for experience he gained, he having been awarded80.50 marks. That is also the case in respect of the thirdrespondent in W.P.No.15355 of 2009 who has been selected for M.Ch.(Urology). After completion of his M.B.B.S. he was working as CivilAssistant Surgeon in Primary Health Centre, Kancheepuram from 1999 to2002 and after completion of his postgraduate course, he was workingin the Government Headquarters Hospital, Salem and presently, he isworking as Tutor in Vascular Surgery in Government Kilpauk MedicalCollege and for the experience he gained after postgraduate degree,he has been awarded three marks out of 10 which also cannot betermed as arbitrary or detrimental to the interest of the writpetitioner. In such view of the matter, even on the factualposition regarding the merit of selected candidates/ respondents, https://hcservices.ecourts.gov.in/hcservices/ there is absolutely no reason to interfere with the selection. 66. Therefore, looking into the matter in any angle, I am of theconsidered view that the writ petitions are misconceived and thepetitioners have miserably failed to bring forth any acceptablegrievance for redressal. In such view of the matter, all the writpetitions are dismissed and the interim orders passed as stated abovestand vacated. No costs. Connected M.Ps. are also dismissed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarkhTo1.The Secretary to Government Higher Education Department Secretariat, Chennai 600 009.2.The Secretary Selection Committee Directorate of Medical Education Kilpauk, Chennai 600 010.3.The Secretary, Medical Council of India Pocket No.14, Sector 8 Dwarka Phase 1 New Delhi 110 077.+ 1 CC to Mr.R.Suresh Kumar,Advocate,SR.49215+ 2 CC to Mr.S.Mani,Advocate,SR.49251,49252+ 1 CC to Mr.Ram Kumar,Advocate,SR.49372+ 1 CC to Mr.A.Jenasenan,Advocate,SR.49298+ 4 CC to Government Pleader,High Court, Madras,SR.49236 to 49238, 49240W.P.NOs.14855,15355,16226 and 16797 OF 2009SSN(CO)EM/30.9.09