Dr.A.R.Balamurugan & Ors. v. NONE

16. Dr.H.Vijayalaxmi..R6 in WP.14864/08(Rank-435-MD-Anesthesia)..R5 in WP.14865/08..R8 in WP.14868/0817. Dr.Ganaganagalaxmi..R7 in WP.14864/08(Rank-441-MD Anesthesia)..R6 in WP.14865/08..R9 in WP.14868/0818. Dr.Kalasri..R8 in WP.14864/08(Rank-487-MD Anesthesia)..R7 in WP.14865/08..R10 in WP.14868/08..R5 in WP.14869/0819. Dr.Padmanaban..R9 in WP.14864/08(Rank-611-MD Anesthesia)..R8 in WP.14865/08..R11 in WP.14868/08..R6 in WP.14869/0820. Dr.Karpagavalli..R10 in WP.14864/08(Rank-772-MD Anesthesia)..R9 in WP.14865/08..R12 in WP.14868/08..R7 in WP.14869/0821. Dr.Carolin Von Mullai..R11 in WP.14864/08(Rank-949-MD Anesthesia)..R10 in WP.14865/08..R13 in WP.14868/08..R8 in WP.14869/0822. Dr.Rajanalini..R12 in WP.14864/08(Rank-952-MD Anesthesia)..R11 in WP.14865/08..R14 in WP.14868/08..R9 in WP.14869/0823. Dr.M.Balasubramani(Rank-214-MD Anesthesia)..R5 in WP.14868/0824. Dr.B.Jeyarani(Rank-230-MD Anesthesia..R6 in WP.14868/0825. Dr.Satish Ragavan(Rank-293-MD PSYCH)Department of Psychiatric MedicineMadras Medical College,P.H.Road, Chennai...R5 in WP.19971/0826. Dr.N.Balasubramani(Rank-776-MD PSYCH)..R6 in WP.19971/08 https://hcservices.ecourts.gov.in/hcservices/

27. Dr.K.Pugazhendhi(Rank-951-MD PSYCH)..R7 in WP.19971/0828. Dr.M.Rajsundari(Rank-1538-MD PSYCH)..R8 in WP.19971/0829. Dr.B.Shanthi(Rank-1532-MD PSYCH)..R9 in WP.19971/0830. Dr.B.Senthil Sayinathan(Rank-1775-MD PSYCH)..R10 in WP.19971/08Petitions filed under Article 226 of the Constitution of Indiapraying for the issuance of writs of declaration declaring that theClause 54 (b) of the Prospectus issued by the second respondent foradmission to P.G.Degree/Diploma/5 years M.Ch (Neuro Surgeons) Coursesfor the year 2008 - 2009 reversing exclusively the seats in statequota in 16 courses for in-service candidates and the selection andadmission given to service candidates based on Clause 54 (b) of theProspectus as illegal and consequently, direct the respondents tohold fresh Counselling to fill the seats in PG Degree/Diploma/M.Ch(Neuro Surgeon) Courses including the 16 courses as done in the year2007 - 2008,award costs. For petitioners...Mr.HariparanthamanFor respondents...Mr.S.Ramasamy, AAGAssisted byMr.A.Suresh, GAfor R.R.1 to 3.C O M M O N O R D E RIn all these writ petitions, the petitioners have challenged theClause 54 (b) of the Prospectus issued by the second respondent foradmission to P.G.Degree/Diploma/5 years M.Ch (Neuro Surgeons) Coursesfor the year 2008 - 2009, the selection and admission given toservice candidates alone in respect of 16 courses inP.G.Degree/Diploma/M.Ch (Neuro Surgeon) based on Clause 54 (b) of theProspectus as illegal and consequently, direct the respondents tohold fresh Counselling to fill the seats in the said Courses as donein the year 2007 - 2008. 2. The case of the petitioners as put forth by them in theiraffidavits in support of the writ petitions are set out hereunder:- https://hcservices.ecourts.gov.in/hcservices/

2.1. The petitioners have passed the MBBS Course and theirambition is to join the further course offered by the Colleges underthe Director of Medical Education, Tamil Nadu. There are 38 PGDegree/Diploma/5 years M.Ch.Surgery) Courses and in all, there are914 approved seats for those courses as per the Prospectus 2008 -2009 issued by the Director of Medical Education.2.2. 50% of each of the said courses is to be filled on an AllIndia Basis. The remainder of 50% seat is to be filled by the State.Out of the State quota, 50% seats are reserved for service candidatesand 50% seats are reserved for open competition candidates. Thepetitioners are concerned about 50% of the reserved seats for theopen competition more particularly Clause 54 (b) of the Prospectus2008 - 2009 that exclusively reserved 16 Post-GraduateDegree/Diploma/5 year M.Ch (Neuro Course) in favour of the servicecandidates. The petitioner are aggrieved over the total exclusion ofthe open competition candidates from the purview of the considerationfor selection against the aforesaid 16 courses of study.2.3. There are 166 seats for those 16 courses. 87 constituting50% is allotted to All India quota. The remainder 50% i.e., 89 seatsin the State quota is exclusively reserved for the in-servicecandidates in respect of 16 courses of study which is impermissiblein law.2.4. Admission is based on the result of the entranceexamination held in 24/2/2008. The entrance examination was taken byboth the service candidates and non-service candidates. The resultshad been published and the merit list was prepared for selectionagainst State quota. Based on the merit list, counselling wasconducted from 10/4/2008 to 13/4/2008. The petitioners could notchoose the said course of study, even though they have secured ranksin the merit list in view of the exclusive reservation for 16 coursesfor service candidates. All the seats is much sought for courses ofstudy. Hence, challenging the said Clause in the Prospectusreserving exclusively 16 courses for the in-service candidates, thepresent writ petitions have been filed.3. Counter affidavits had been filed on behalf of therespondents 1 to 4 wherein the following facts have been set out.3.1. For the Post-graduate Degree/Diploma seats are surrenderedto the candidates selected by All India Quota. In the remaining 50%of State quota in Post-Graduate seats, 25% seats have been reservedto service candidates and 25% seats have been reserved for theprivate candidates. In the year 2008 - 2009, the Government wishedto ensure that there is no scarcity of the Doctors and the servicesof the Doctors after completion of Post-graduate courses be utilized https://hcservices.ecourts.gov.in/hcservices/ to serve the poor and needy of the country at large in particular.The Government is in moral obligation to discharge in variousspecialities to fulfill the Medical Council of India norms stipulatedfor the conduct of courses. Hence it has become imperative for theGovernment to identify some specialities to foresee and fulfill thestaff strength in order to render services to the poor patients andalso to number of Doctors required in prime specialities. 3.2. The Government in G.O.Ms.No.315 Health and Family Welfare(B1) Department dated 31/8/2007 declaring certain specialities asscarce categories. The Government of Tamil Nadu is offering MedicalEducation for Post-Graduate and Higher Speciality Courses to thecandidates through 14 Government Medical Colleges/Hospitals andspecialised institutes. There are number of vacancies in theGovernment Medical Colleges and Hospitals in these scarceSpecialities. In order to fill up these vacancies with MedicalOfficer qualified in these specialities, the Government have takenthe decision to reserve these Post-Graduate seats exclusively forservice candidates.3.3. Providing Medical education for Post-Graduate and HigherSpeciality Courses, the Government spends a large amount of money andlevies nominal fees and in the same time provides stipend to privatecandidates and salary to service candidates. In order to ensure theservices of the Doctors after completion of Post-Graduate courses toserve the poor and needy of the Country at large and this State inparticular and also to satisfy Medical Council of India Norms inconducting MBBS and Post-Graduate course the said decision was taken.Thus, it has reserved certain specialities in Government MedicalColleges exclusively for service candidates alone. The Governmenthave approved for the above modification issued in the GovernmentLetter No.55958/MCA1/2007 Health and Family Welfare Department dated14/1/2008.3.4 In the first round of counselling, all the seats under thereserved category (16 specialities) were allotted to servicecandidates. In the second round of counselling, because of the Courtdirections and instructions from the Government, the remaining seatsin the reserved category (16 specialities) in the second round ofcounselling, 50% of the seats were given to open category and 50% ofthe seats were allotted to service candidates. Thus, the counteraffidavits seek for the dismissal of the writ petitions.4. Mr.D.Hari Paranthaman, learned counsel appearing for thepetitioners contended that(a). Exclusive reservation of 100% to one category is highlyarbitrary, illegal and violative of Article 14 of the Constitution of https://hcservices.ecourts.gov.in/hcservices/ India.(b). The action of the respondents in permitting the Non-service candidates to participate in the second phase of counsellingalong with service candidates to avail the remaining vacant seatsthat were left vacant after availing of by the service candidates inthe first phase of counselling, after the agitation, would make itclear that Clause 54 (b) of the Prospectus 2008 - 2009 is notsustainable.(c). In the previous years, there were no such exclusivereservation for service candidates to any of the Courses. While so,for the first rime, it has been introduced in the year 2008 - 2009and absolutely, there is no reason for the change to the existingpractise.(d). Since the service candidates are influential persons whocould exert pressure on the Government, the first respondent actedwith a mala fide intention and for extraneous consideration inexclusively reserving seats in 16 courses in the State quota for inservice candidates.5. On the contrary, the learned Additional Advocate Generalappearing for the respondents would contend that certain courseswhich are considered as Specialities have been exclusively reservedfor service candidates to ensure that there is no scarcity of Doctorsand the services of the Doctors after completing P.G.courses to servethe poor and needy of the Country in particular. There are number ofvacancies in the Government Medical Colleges and Hospitals in thesescarce hospitals. In order to fill up these vacancies with MedicalOfficer qualified in these specialities, the Government have takenthe decision to reserve these Post-Graduate seats exclusively forservice candidates. The Government which is spending large amount ofmoney and levies nominal fees and in the same time provided stipendto private candidates and salary to service candidates, in order toensure that the services of the Doctors after completion of P.G.courses to serve the poor and needy of the Country at large and thisstate in particular, it has proposed to reserve certain specialitiesin Government Medical Colleges exclusively for service candidatesalone, as such the same cannot be faulted.6. Counsels who have appeared for the selected candidates havesubmitted that the petitioners after knowing fully well that 16courses have been ear- marked for the service candidates alone,through prospectus cannot question the same after they have not beenselected for the Post-Graduate courses. Having participated in theselection process, after knowing about the Prospectus, reserving 16courses for the in-service candidates, the petitioners cannot https://hcservices.ecourts.gov.in/hcservices/ question the Clauses in the Prospectus when they have not beenselected. Further more, when the Government had taken a policydecision, the same cannot be questioned by the petitioners in thesewrit petitions and this Court cannot entertain such writ petitions.Thus, the counsels appearing for the selected persons sought for thedismissal of the writ petitions.7. I have considered the submissions made by the learnedcounsel appearing for the petitioners, the learned AdditionalAdvocate General appearing for the respondents 1 to 4 and thecounsels appearing for the selected persons.8. The facts which are not disputed are that out of 38 Post-graduate degree/Diploma/5 years M.Ch.Surgery courses, there are 914approved seats for those courses as per the Prospectus 2008 - 2009issued by the Director of Medical Education. It is also not indispute that out of the same, 50% is to be filled on an All IndiaBasis (quota) and the remainder 50% is to be filled by the State.Out of the State quota, 50% seats are reserved for servicecandidates and 50% seats are reserved for open competitioncandidates. Out of 50% reserved seats for open competition, Clause54 (b) of the Prospectus 2008 - 2009 exclusively reserved 16 Post-Graduate Degree/Diploma/5 Year M.Ch (Neuro Course) in favour of theservice candidates. Thus, the open competition candidates aretotally excluded from the purview of the consideration for selectionagainst the aforesaid 16 courses of study.9. The first and foremost question that has to be answered is "Whether the petitioners who have applied forthe Post-Graduate courses, fully knowing about theProspectus which clearly says that 16 courses areoffered to only service candidates, are entitled toraise the issue that the said Clause in theProspectus is illegal, arbitrary and violative ofArticle 14 of the Constitution of India?"9.1. The learned counsels appearing for the selected personshave relied on the decision reported in 1999 (III) CTC - 675(Dr.R.MURALI Vs. Dr.R.KAMALAKKANNAN AND THREE OTHERS) and wouldcontend that the policy decision taken by the Government in fixingsome quota for service candidates and non-service candidates based onintelligible criteria and the persons who have participated in thewritten test after fully knowing well about the prospectus areestopped from questioning the selection process. 9.2. Per contra, the learned counsel appearing for thepetitioners would contend that even though the petitioners have https://hcservices.ecourts.gov.in/hcservices/ applied for the Post-graduate courses, knowing fully well about theprospectus ear-marking 16 courses for the in-service candidates, thepetitioners can still question the Clauses in the prospectus, if itis violative of Article 14 of the Constitution of India. Accordingto the learned counsel for the petitioners, 100% reservation for thein-service candidates in respect of 16 courses is totally notpermissible and hence it is liable to be set aside.9.3. I have considered the said submissions. It is not thecase of the petitioners that they were not aware of the Prospectuswhen they applied for the Post-Graduate courses. However, their caseis that 100% reservation to the service candidates in respect of 16courses is totally bad in law.9.4 In 1999 (III) CTC - 675 (Dr.R.MURALI Vs. Dr.R.KAMALAKKANNANAND THREE OTHERS), the Full Bench of the Principal Bench had clearlyheld that when a person applied for admission based on conditionstated in the prospectus and wrote examinations without protest, hecannot question the selection process. The Full Bench has atlength considered various pronouncements of the Honourable Apex Courtand finally held that"Having participated in the written test andafter fully knowing terms and conditions ofprospectus, candidate estopped from questioningselection process."The said judgment squarely applicable to the facts of the presentcase. 9.5. The Division Bench of this Court in Writ Appeal Nos.89 to91 of 2008, by an order dated 5/2/2008 had held that a personaccepting the Prospectus on the terms and conditions found thereonand applied for the selection to the Post-Graduate Course at the timeof submitting the application would not be permitted to raise thequestion that the terms and conditions in the Prospectus are bad inlaw or non-selection.Paragraph Nos.4 and 5 of the said order is usefully extractedhereunder:-"4. Admittedly, all the appellants hadapplied for selection by accepting the saidconditions. Even though the appellants were notselected for post-Graduate Course at the time ofsubmitting applications and on the date ofselection, they were put on notice that on theirselection, they will not be permitted to undergo https://hcservices.ecourts.gov.in/hcservices/ Post-Graduate course within a period of two years,excluding the leave. Having applied for selectionby accepting the said conditions, it is not openfor the appellants now to seek for furtherextension to join the post on the ground that theyare pursuing their Post-Graduate Diploma. It isnot permissible for the appellants to attack theconditions of the advertisement after participatingin the selection process. (See UNION OF INDIA ANDANOTHER Vs. N.CHANDRASEKHARAN AND OTHERS, AIR 1996S.C. - 795), I.L.HONNEGOUNDA Vs. STATE OF KARNATAKAAND OTHERS, A.I.R.1978 S.C.28 AND OM PRAKASHSHUKLA VS. AKHILESH KUMAR SHUKLA 1986 (SUPP) SCC -285).5. Moreover, there is no power in theAuthorities to grant relaxation of the condition tojoin duty. The binding nature of the instructionsto the candidate is well settled. The SupremeCourt in PUNJAB ENGINEERING COLLEGE, CHANDIGARH Vs.SANJAY GULATI, (AIR 1983 SC - 560) has clearly laiddown that the Prospectus is binding on all personsconcerned and following the same, a Division Benchof this Court has also observed in RATHNASWAMY,Dr.A.Vs.DIRECTOR OF MEDICAL EDUCATION, 1986 ELR 207that the rules and norms of the Prospectus are tobe strictly and solemnly adhered to. The sameprinciple is reiterated in the case of Dr.M.ASHIQNIHAMATHULLAH Vs. THE GOVERNMENT OF TAMIL NADU ANDOTHERS, 2005 WLR - 697. It is not permissible forthe Court to make any modification and/orrelaxation in the conditions stipulated by theProspectus. Further, granting of any relief inthis petition would mean that the post in questionwill have to be kept vacant for another six monthsor one year causing serious prejudice to thegeneral public."Thus, the decision cited above would indicate that the petitionerswho have participated in the selection process for the post-graduatecourses fully knowing about the fact that 16 courses have been earmarked to in service candidates alone, cannot be heard to say lateron non-selection, that ear-marking the 16 courses only for in servicecandidates alone is bad in law.10. Secondly, the policy decision has been taken by theGovernment to ear-mark 16 Courses for the in-service candidates onthe ground that the Government wishes to ensure that there is no https://hcservices.ecourts.gov.in/hcservices/ scarcity of the Doctors and the services of the Doctors aftercompletion of Post-Graduate Courses be utilized to serve the poor andneedy of the country at large in particular. Considering the factthat there are number of vacancies in the Government Medical Collegesand the Hospital in the scarce specialities, in order to fill upthese vacancies with Medical Officer qualified in these specialities,the Government have taken a decision to refer this Post-graduatecourses exclusively for the service candidates. When such a policydecision had been taken by the Government, it is not for this Courtto direct or advise the Executives in matters of Policies.10.1. Such a view had been taken by the Honourable Apex Courtand the same is reported in (2007) 7 MLJ - 730 (EKTRA SHAKTIFOUNDATION Vs. GOVERNMENT OF NCT OF DELHI). Paragraph Nos.10 to 12of the said judgment are usefully extracted hereunder:-"While exercising the power of judicial reviewof administrative action, the Court is not theappellate authority and the Constitution does notpermit the Court to direct or advise the executivein matter of policy or to sermonize any matterwhich under the Constitution lies within the sphereof the Legislature or the executive, provided theseauthorities do not transgress their constitutionallimits or statutory power. See ASHIF HAMID Vs.STATE OF J & K AIR 1989 SC 1899, SHRI SITARAM SUGARCO. Vs. UNION OF INDIA, AIR 1990 SC 1277. Thescope of judicial enquiry is confined to thequestion whether the decision taken by theGovernment is against any statutory provisions oris violative of the fundamental rights of thecitizens or is opposed to the provisions of theConstitution. Thus, the position is that even ifthe decision taken by the Government does notappear to be agreeable to the Court it cannot beinterfere.11. The correctness of the reasons whichprompted the Government in decision making, takingone course of action instead of another is not amatter of concern in judicial review and the Courtis not the appropriate forum for suchinvestigation.12. The policy decision must be left to theGovernment as it alone can decide which policyshould be adopted after considering all the pointsfrom different angles. In matter of policy https://hcservices.ecourts.gov.in/hcservices/ decisions or exercise of discretion by theGovernment so long as the infringement offundamental right is not shown Courts will have nooccasion to interfere and the Court will not andshould not substitute its own judgment for thejudgment of the executive in such matters. Inassessing the propriety of a decision of theGovernment the Court cannot interfere even if asecond view is possible from that of theGovernment.10.2. In yet another decision reported in 2007 (3) CTC - 814(S.KARTHIKEYAN Vs. TEACHERS' RECRUITMENT BOARD, E.V.K. SAMPATHMALIGAI, 4TH FLOOR, D.P.I. COMPOUND, COLLEGE ROAD, CHENNAI 600 006),the learned Single Judge of this Court has held that"The policy decision of Government in selectionfor posts cannot be interfered with in a writjurisdiction, except if it is violative of theprovisions of the Constitution of India or contraryto public policy or laws in force or, if it isviolative principle of natural justice. Further, ithas been held in the said order that the petitionerthereof having participated in the process ofselection, it may not be open to him to challengethe same later. The said judgment squarely applicable to the facts of the presentcase.11. The learned counsel for the petitioners relied on thedecision reported in 2008 (4) CTC - 741 (MAHATMA GANDHI UNIVERSITYAND ANOTHER Vs. GIS JOSE AND OTHERS). That is a case where anirregular admission had been made in violation of admission Rules.The student not having University prescribed cut-off mark foradmission to M.Sc.Computer Science course had been admitted andallowed to complete the course. In those circumstances, it has beenheld that the admission of the student and the completion of thecourse and writing of the examination are totally illegal and therecannot be any misplaced sympathy in breach of Rules.11.1. The said judgment may not be applicable to the facts ofthe present case, since it is not an irregular admission that hasbeen made but selection have been made and some Courses have beenear-marked totally to the service candidates on the policy decisionof the Government which cannot be questioned. Hence, the saidjudgment may not be applicable to the petitioners. https://hcservices.ecourts.gov.in/hcservices/

11.2. The learned counsel appearing for the petitioners wouldrely on the decision reported in (2008) 5 MLJ - 517(Dr.J.BALASUBRAMANIAN Vs. STATE OF TAMIL NADU, REP. BY ITS SECRETARY,HEALTH AND FAMILY WELFARE DEPARTMENT, CHENNAI AND OTHERS), whereinthe Principal Bench has held that "The permission granted to the student as perthe interim order of the Court in a writ petitionto write examinations itself is not sufficient tohold that the student's admission has to beapproved and it cannot be taken as a rightgranted to him to complete the Course in the saidInstitution."This judgment may not be of any use to the petitioners in the factsand circumstance of the present case.11.3. The other decision that has been cited by the learnedcounsel for the petitioners is reported in 1995 (5) SCALE - 66 (STATEOF TAMIL NADU Vs. T.DHILIPKUMAR & ORS. That is a case where theentire reservation made for in-service candidates and P.G. course inrespect of all disciplines including Anaesthesia in Post-graduatemedical courses (both diploma and degree). Under suchcircumstances, the Honourable Apex Court had confirmed the decisionof the Honourable High Court, Madras holding that reservation infavour of the service candidates for the year 1992 - 1993 in respectof all disciplines should be confined to 50%. In the case on hand,as it has already held that only certain category of courses havebeen ear-marked to the in-service candidates.12. However, I am constrained to add that such en-massreservation to in service candidates alone in toto in respect of 16courses, should have been avoided by the respondents. Such courseadopted by the respondents deprive totally the non-service candidatesto pursue their further study in those courses. In fact in thesecond counselling held, non-service candidates have been allowed toavail the seats for those courses which would indicate that therespondents are not serious in their concept that the 16 coursesshall be filled up only by in service candidates. I hope that atleast in the next year, the anomaly would be set right and rectified.13. Thus, summing up the entire issue which is in controversyin the present writ petitions, I am constrained to hold(i). that ear-marking 16 courses in the Post-Graduate study forin-service candidates cannot be faulted since it is a policy decisionthat has been taken by the Government on certain reasonings whichhave been discussed earlier. However, the respondents are directed to https://hcservices.ecourts.gov.in/hcservices/ set right and rectify the anomaly in the next year.(ii). The petitioners who have participated in the selectionprocess, knowing fully about the Prospectus which had clearly statedthat 16 courses in Post-Graduate Degree/Diploma/5 years M.Ch(Surgery) Courses had been ear marked to the in-service candidates,cannot now claim that the said Clause in the Prospectus is arbitraryand violative of Article 14 of the Constitution of India.14. For all the reasons stated above, I am not inclined toaccept the plea that has been raised on the side of the petitioners.15. In fine, these writ petitions stand dismissed withobservation mentioned in para 12. No costs. Consequently, theconnected Miscellaneous Petitions are also dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.mvs.To1. The Secretary to Government Health and Family Welfare Department Secretariat, Fort St. George Chennai 9.2. The Director Directorate of Medical Education 162 Periyar EVR High Road Kilpauk, Chennai 10.3. The Secretary Selection Committee 162 Periyar EVR High Road Kilpauk, Chennai 600 010.+ 7 CC to Mr.R.Marudhachalamurthy, Advocate SR.NO.4703 to 4709+ 1 CC to Mr.V.Manisekaran, Advocate SR.NO.4939+ 1 CC to Mr.S.Vadivel Murugan, Advocate SR.NO.4734+ 1 CC to Government Pleader, Advocate SR.NO.4774CK(CO)W.P.Nos.14861 to 14869 andEM/26.3.0919971 of 2008