Pre-P.G.
Medical Sangarsh Committee & Anr Vs. Dr. Bajrang Soni & Ors [2001] Insc
387 (14 August 2001)
Doraiswamy
Raju, S.R.Babu Raju, J.
Appeal (civil) 7259 of 1999 Appeal (civil) 7260 of 1999
Appeal (civil) 7263 of 1999
These
appeals involve a challenge to the powers as well as the right of the State
Government to provide for reservation of seats for admission to Post Graduate
Medical Courses for in-service candidates and the reasonableness or otherwise
of the extent upto which such reservations could be made. Before the learned
Single Judge, challenge was made to the decision of the Government/University
fixing 33% to be the qualifying marks for in- service candidates to render them
eligible for admission to the Post- Graduate courses. The second ground of
challenge was to the decision of the Government to increase the reservation of
seats for admission into Post-Graduate courses for in-service candidates from
25% to 50% out of the remaining 75% of the seats after excluding 25% of the
seats reserved for central quota.
The
learned Single Judge by his order dated 22.2.1998 repelled the challenge based
on the first ground and held that the State, which is authorized to regulate
the admissions to Post-Graduate Courses of Medicine by prescribing minimum
qualifying marks in the entrance examination therefor, is entitled, as in this
case, to fix a minimum of 33% for the in-service candidates, and that this
could not be said to be illegal. So far as the second ground of challenge was
concerned, it met with the acceptance of the learned Single Judge, who came to
the conclusion that there was no justification made by placing materials on
record for directing such an increase in the matter of reservation from 25% to
50% and the same was liable to be set aside as excessive, while maintaining, at
the same time, the earlier prescribed reservation upto 25%.
Aggrieved,
the State of Rajasthan as well as some of the in- service candidates filed
appeals before a Division Bench and the Division Bench by its judgment dated
13.7.1999 set aside the order of the learned Single Judge insofar as he
interfered with the increase in the percentage of reservation made for
in-service candidates from 25% to 50% on the ground that not only the State had
such powers to prescribe, on such matters as a matter of policy, but the
learned Single Judge, who sustained such powers to inhere in the State, could
not have interfered with the policy-decision of the State Government
necessitating such increase from 25% to 50% for in- service candidates for
admission to Post-Graduate courses in the Medical Colleges of the State,
particularly when the policy-decision was based on reasons which had nexus to
the objects sought to be achieved. In the light of the above, the Division
Bench thought it unnecessary to examine further whether the increase of seats
from 25% to 50% for in-service candidates pertains to the area of reservation
or fixing the source of admission. The appeals were accepted and allowed.
Hence,
the above appeals by the petitioners before the learned Single Judge and others
permitted to file appeal by this Court. Heard learned counsel on either side.
The
very question was considered by this Court in a decision reported in State of Tamil Nadu vs T. Dhilipkumar & Ors.
(1995(5) SCALE 208) and it was held as follows :- "4. In so far as the
additional mark awarded to in-service candidates serving in rural areas is
concerned, the judgment of this Court in Dr. Dinesh Kumar & Ors vs Motilal
Nehru Medical College, (1986(3) SCR 345) is the answer to the argument that
in-service candidates serving in rural areas will, after acquisition of
post-graduate degrees, return to rural areas. The observations in this behalf
have been cited by the High Court and in our view, rightly.
..............................................................
6. In
our view, the High Court was right in the view that it took, that no
reservation beyond fifty per cent is ordinarily contemplated and this
percentage is what the High Court allowed. In striking down the additional mark
for in-service candidates serving in rural areas, the High Court followed the
decision of this Court." In Ajay Kumar Singh And Others vs State of Bihar
And Others (1994(4) SCC 401), this Court held that the Indian Medical Council
Act, 1956 did not empower the Council to regulate or prescribe qualifications
or conditions for admission to Post-Graduate courses and that regulation and
admission to such Medical courses is not only incidental but an integral part
of the power of the States, which establish and maintain such institutions out
of public funds and the State could always regulate the admission policy while
adhering to the standards determined by the Medical Council. The learned
Judges, who delved into the matter at length, also highlighted the vital fact
that mere academic performance is no guarantee of efficiency in practice in the
field of medicine and consequently, it is wrong to presume that a doctor with
good academic record is bound to prove a better doctor in practice. In yet
another decision reported in K. Duraisamy and Anr. etc. etc. vs The State of
Tamil Nadu and Ors. [2001(2) SCC 538 = JT 2001(2) SC 48], though rendered in
the context of working out the reservations and the manner stipulated therefor,
by the Government, the very question about the power of the Government also
came up for consideration and one of us (Raju, J.), speaking for the Bench,
while applying the earlier decision in 1995(5) SCALE 208 (supra), observed as follows
:- "8. That the Government possesses the right and authority to decide
from what sources the admissions in Educational Institutions or to particular
disciplines and courses therein have to be made and that too in what
proportion, is well established and by now a proposition well settled, too. It
has been the consistent and authoritatively settled view of this Court that at
the super-speciality level in particular and even at the Postgraduate level
reservations of the kind known as 'protective discrimination' in favour of
those considered to be backward should be avoided as being not permissible.
Reservation,
even if it be claimed to be so in this case, for and in favour of in-service
candidates, cannot be equated or treated at par with communal reservations
envisaged under Articles 15(4) or 16(4) and extended the special mechanics of
their implementation to ensure such reservations to be the minimum by not
counting those selected in open competition on the basis of their own merit as
against the quota reserved on communal considerations.
9.
Properly speaking, in these cases, we are concerned with the allocation of
seats for admission in the form of a quota amongst in- service candidates, on
the one hand, and non- service or private candidates on the other and the
method or manner of working out in practice the allocation of seats among the
members of the respective category. Could the State Government have
legitimately made a provision allocating 50% of seats exclusively in favour of
in-service candidates and keep open the avenue for competition for them in
respect of the remaining 50% along with others denying a fair contest in
relation to a substantial or sizeable number of other candidates, who are not
in service and who fall under the category of non-service candidates, will
itself be open to serious doubt. One such attempt seems to have been put in
issue before the Madras High Court which held that reservation in favour of in-
service candidates for the academic year 1992-93 should be confined to 50% and
awarding of two additional marks, instead of one additional mark for each
completed year of service in primary health centers, was unconstitutional and
when the matter was brought to this Court, in the decision reported in State of
Tamil Nadu vs T. Dhilipkumar & Ors. [1995 (5) Scale 67] the decision of the
High Court has been upheld. This Court also further observed that the
Government should appoint a highly qualified committee to determine from year
to year what, in fact, should be the percentage-wise reservation required for
in-service candidates, having regard to the then prevailing situation and that
the percentage of fifty percent shall, if found appropriate, be reduced."
It is permissible for the Government to fix such a source or classification of
candidates from which selection for admission to the Post-graduate Colleges in
the State had to be made for yet another genuine, relevant and reasonable cause
and purpose, which has, in our view, sufficient nexus to the larger goal of
equalization of educational opportunities and to sufficiently prefer the
doctors serving in the various Hospitals run and maintained from out of public
funds by the Government or Government departments, in the absence of which
there would be serious dearth of qualified post-graduate doctors and experts to
meet the requirements of such Hospitals run by the State and State Departments,
the only avenue open for treatment of the large body of ordinary common man,
all over the State. This larger public interest, unlike reservations envisaged
for SC/ST with a different and laudable purpose to assist educationally
backward classes, is a distinct and vitally important public purpose in itself
absolutely necessitated in the best of public interest. The decision reported
in Dr. Narayan Sharma And Another, etc. vs Dr. Pankaj Kr. Lehkar And Others,
etc. (2000(1) SCC 44) is not directly on the point with which we are concerned
in this case. Similarly, the observations made and dicta laid down in what is
known as Mandal's case reported in Indra Sawhney vs Union of India And Others
(1992 Supp. (3) SCC 217) also has no relevance or application to the case on
hand.
The
learned counsel for the appellants, who filed the appeals with the permission
of the Court, also sought to challenge the conclusion arrived at by the learned
Single Judge in repelling the challenge made to the reduction of the minimum
cut-off marks for selection of the in-service candidates from 50% to 33%. Apart
from the tenability of the objection taken by Shri Sushil Kumar Jain, learned
counsel appearing for the private candidate-respondents, that if there was no
challenge made of this reasoning before the Division Bench of the High Court it
is not permissible to take such a stand in this Court, we are also of the view,
on the merits of the claim itself, that there is no substance in the same. It
is not in controversy that during the academic years in question, there was no
stipulation by the Medical Council of India of any minimum eligibility marks to
be secured in the entrance examination for admission to post-graduate courses.
Though it is said that in 2000 such a stipulation has been made, for the
obvious reason that during the years under our consideration there is no such
stipulation, the challenge in this regard does not merit our consideration or
acceptance, leave alone the question as to the efficacy or binding nature of
the said stipulation, which we do not propose to adjudicate upon in these
cases. That apart, as rightly pointed out in one of the judgments of this Court
noticed above, mere theoretical excellence or merit alone is no sufficient
indicia of the qualitative merits of the candidates in the field of actual
practice and application. The doctors, who are in-service candidates in various
medical institutions run and maintained by the Government or Government
Departments, have wide area and horizon of exposure on the practical side and
they may not have the required extra time to keep themselves afresh on the
theoretical side like an open candidate who may have sufficient time at his
disposal to plod through books. The in-service candidates in contrast to the
fresh or open candidates have to spend much of their time on attending and
treating the patients in the Hospitals they serve gaining excellence on the
practical side and, in our view, they would constitute a distinct class by themselves
to be given a special treatment and no grievance can be made out on the ground
that the minimum eligibility marks for their selection in respect of seats
earmarked for them should also be the same as that of the fresh or open
candidates. We could see no discrimination or arbitrariness involved in the
special provision made to meet a just and appropriate need in public interest.
For
all the reasons stated above, these appeals fail and shall stand dismissed. No
costs.
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