K. Duraisamy
& Anr, C Vs. The State of Tamil Nadu
& Ors [2001] Insc 34 (23 January 2001)
R.C.Lahoti,
Doraswamy Raju Raju, J.
Appeal (civil) 5910 of 1999 Appeal (civil) 6995-6996 of 1999
Appeal (civil) 562 of 1999
L.J
The
above appeals have been filed against the decision of a Full Bench of the
Madras High Court dated 1.10.1999 in Writ Appeal Nos.929/99, etc. The Writ
Petition (C) No.562 of 1999 has been filed by a person similarly placed like
the appellants, directly in this Court raising identical issues as are raised
in the appeals, canvassing at the same time the correctness of the decision of
the Full Bench of the Madras High Court.
Having
regard to the question decided by the Full Bench and the issues raised in the
above Appeals and Writ Petition, it is unnecessary to advert to the factual
details relating to the Courses applied by the respective parties or as to the
total number of seats available, number of seats reserved, the marks obtained by
the respective candidates and the inter se ranking in the merit list. It is
stated that Civil Appeal No.5910 of 1999 concerns D.M. (Obstetrics) & (Gynaecology),
a post- graduate course, and the courses involved in the other Appeals and the
Writ Petition are said to be super speciality courses.
The
Government of Tamil Nadu, Health and Family Welfare (MCA) Department, issued G.O.Ms.
No.55 dated 9.2.99 laying down the procedure for selection of candidates for
admission to Post- graduate Diploma, Degree, M.D.S. and Higher Speciality
courses for the academic session 1999-2000, with Annexure-I thereto containing
the Prospectus pertaining to Post-graduate Diploma/Degree/M.D.S. courses and
Annexure-II containing the Prospectus relating to Higher Speciality courses.
The Government Order envisaged reservation confining up to 50% in favour of
in-service candidates on merit basis and further stipulated that 50% of the
seats available in each of the speciality, shall be allotted exclusively to
service candidates. The Government Order also enumerated various categories of
Medical Officers, who alone will be treated as service candidates and
considered for selection against the 50% of the seats allocated exclusively for
service candidates. As for the remaining 50%, referred to as Open Quota, while
stipulating the criteria for selection to what has been referred to as the
remaining 50% Open Quota, it has been stated that all other eligible Medical
Officers, except those enumerated categories of Medical Officers, shall be eligible
to apply for the same. The further stipulation, which requires to be noticed,
is the one providing that all procedures in respect of such of those matters
enumerated in the relevant clause of the Order followed during 1998- 1999 shall
be followed for 1999-2000 also. The above stipulations in respect of allocation
of seats exclusively for the service candidates and the other for non-service
candidates have been carried out in the Prospectus, both relating to the
Post-graduate Degree/Diploma courses as well as the Higher Speciality courses.
So far as the Post- graduate Degree/Diploma courses are concerned, the same
were incorporated under the heading
IX.
METHOD OF SELECTION AND ADMISSION, and in respect of Higher Speciality courses,
they were incorporated under the heading
X.
METHOD OF SELECTION AND ADMISSION.
The
necessary program has been published prescribing the last date for receipt of
application forms, the dates for undertaking Entrance Examination, publication
of merit lists, etc. After conduct of written Entrance Examination for the
purpose and publication of the results of selected candidates, it came to be
known, according to the appellants, that they were not selected due to a
particular understanding of the Orders of the Government and stipulations
contained in the Prospectus relating to earmarking or allocation of seats for
in-service candidates and non-service candidates in a manner by which the
claims of in-service candidates based on merit on the basis of marks came to be
ignored in respect of 50% of the seats allocated as Open Quota by confining
them exclusively to non-service candidates and considering claims of in-
service candidates like the appellants only in respect of 50% allocated to and
reserved for service candidates.
This
resulted in the appellants and others filing Writ Petitions before the High
Court. A learned Single Judge, while allowing the writ petitions held that
reservation of 50% of seats for non-service candidates have to be given effect
to or worked out by selecting candidates from in-service and non-service, on
the basis of merit in the first instance and thereafter the 50% seats reserved
for in-service candidates shall be filled up by in-service candidates who could
not gain selection on the basis of merit as against the other 50% earmarked as
open. The learned Judge, even overlooking the fact that a description of the
respective classification has been given, was of the view that there is no
category as non-service candidates, and it is only the in-service candidates who
form a separate class. The learned Judge also drew inspiration from decisions
of Courts pertaining to reservation under Article 16 (4) of the Constitution of
India to hold in these cases also that those candidates belonging to special
categories who have a reservation in their favour but could get or got
selection purely on the basis of their own merits shall not be counted against
the number reserved for that class or category and must be treated as having
got in against the seats available in open competition. Aggrieved, some of the
selected candidates who had intervened in the writ petitions filed in Writ
Appeal Nos. 905, 906 and 918 of 1999 but the same were dismissed on 18.6.99
even at the stage of admission, summarily. The appeals filed by the State in
Writ Appeal Nos. 929, 952 to 956 of 1999 came up subsequently before another
Division Bench and finding themselves unable to agree with order of dismissal
of the earlier appeals, the matters were referred for consideration by a larger
Bench after obtaining orders of the Chief Justice. This Division Bench was of
the view that the decision of the Single Judge was not correct. Thereupon the
matters were placed before the Full Bench, which, in turn, reversed the
judgment of the learned Single Judge and dismissed the Writ Petitions.
The
Full Bench, whose judgment is under challenge before us, was of the view that
the interpretation given by the Single Judge, particularly on the basis of the
guidelines of the earlier year cannot be sustained, that the writ petitioners
who participated in the written examination and selection process duly
proclaimed cannot challenge the same subsequently on finding themselves
unsuccessful and cautioned the authorities to be more careful to avoid vague
clauses/language of doubtful purport and import leading to unnecessary and
avoidable litigation, in future.
The
learned counsel for the appellants and the writ petitioner, while adopting the
line of reasoning of the learned Single Judge in the High Court, vehemently
contended that the interpretation placed by the Full Bench on some of the
clauses in the Government order/prospectus was not justified in law and that
the manner of working out the policy of reservation indicated by the Full Bench
is opposed to the well-settled principles laid down by Courts in the matter of
implementing reservation policies and if allowed to stand, according to the
appellants, would defeat the policy and objects of reservation, itself. The
learned counsel for the State supported the reasoning of the Full Bench by
contending that the classification made as service quota and open quota for
non-service candidates for purposes of confining the respective class/category
of candidates to the percentage earmarked for them exclusively is permissible
and well within the powers of the State which establish, administer and
maintain the Medical Colleges and that such prescription of quota cannot be
treated on par with communal and other reservations, ordinarily made. It was
also urged that in law there can be different sources of recruitment under
classified heads or categories such as service candidates and non-service or
private candidates, they having distinct and different identity based on
intelligible criteria and that too when made with a definite purpose and object.
Before
dealing with contentions of parties, it is useful and necessary to refer to the
clauses on which there had been divergent views of the High Court. The
Government order dated 9.2.99, which forms the basis for the prospectus issued
and the relevant clauses found extracted therein, lays down the criteria, as
follows:-
1. (iii)
(a) The reservation will be confined to and kept at 50% in favour of in-service
candidates on merit basis.
(b)
50% of the seats available in each of the specialities shall be allotted
exclusively to service candidates.
(c) If
sufficient number of eligible service candidates are not available for the
seats reserved exclusively for them, such vacancies shall be filled up by the
non-service candidates from the merit list/waiting list in the respective
reserved compartments. If vacancies exist even after this, such vacancies shall
be filled up applying the order of preference indicated in the prospectus.
(d)
The following categories of Medical Officers only will be treated as Service
candidates and considered for selection against 50% of seats allocated
exclusively for service candidates:-
(1)
All Medical Officers selected by the TNPSC and appointed in Tamilnadu Medical
Services on regular basis, who have put in minimum of 2 years continuous
service as on 1.2.99.
(2)
Medical Officers (or) Health Officers in the Public Health Department who have
been selected by the TNPSC and working under the control of DPH & PM and
who apply for Public Health Course i.e. Diploma in Public Health can be
considered as Service candidates for DPH as the above qualification namely Dip.
in Public Health is essential for declaration of probation. However, to
consider under service quota for MD (SPM), the candidates must have completed 2
years of service like the other postgraduate courses.
(3)
Medical Officers who have put in 2 years of continuous service and who are
working in :-
(i)
Local Bodies/Municipalities in Tamil Nadu.
(ii)
Government of India Institutions in Tamil Nadu.
(iii)
Public Sector Undertaking and Organisation under the control of Govt. of India
in Tamil Nadu.
(iv)Undertakings
and Organisations of Government of Tamil Nadu.
These
Medical Officers should produce bona-fide certificates from the concerned
authorities with the declaration to serve in the respective institutions for a
minimum period of 5 years after completion of the course.
(e)
Criteria for selection under 50% open quota:- All other eligible Medical
Officers except those specified in clause (iii) (d) above are eligible to apply
under 50% open quota.
(iv)
(a) The Rule of reservation i.e. 31% for open competition, 30% for backward
classes, 20% for most backward classes/De-notified communities, 18% for
Scheduled Castes and 1% for Scheduled Tribes shall apply to 50% seats reserved for
service candidates and to the 50% seats to be filled up on the basis of merit
from service and non-service candidates separately under each speciality.
(b)
The rule of reservation shall apply to any course with 8 seats and above both
for open and service quota, in a discipline.
(v)
The cost of application form shall be Rs.600/- (Rupees Six Hundred only) for
all the courses. The cost of the application form shall be paid by a crossed
Demand Draft on any Nationalised Bank drawn in favour of the Secretary Selection
Committee KMCH campus Kilpauk, Chennai-600010. As per G.O. MS No.111 Adi Dravidar
& Tribal Welfare Department dated 22.9.98 SC/ST candidates are exempted
from payment of DD for Rs.600/- . .
6. The
Government direct that all procedures such as reservation of 25% of seats in
Post Graduate Courses for all India Quota, conduction of Entrance Examination
at Chennai only, eligibility criteria to apply allocation of seats between open
quota and service candidates on 50:50 basis, the procedure for filling up of
vacant seats allotted to service candidates in the event of non- availability
of candidates, awarding of one mark to each answer with correct response,
Negative Mark System for incorrect response, determination of inter se merit of
candidates obtaining equal marks, mentioning of number of seats in each speciality
college-wise and course-wise in the Annexure to the prospectus, payment of
stipend and other procedures relating to execution of security bond and surety
bond, obtaining written undertaking from all non-service candidates to serve
within the country for a period of not less than 5 years, computerisation of
application/coding sheet, evaluation of answer papers, taking of anti-
Hepatitis-B injection by selected candidates and incurring of expenditure for
the conduct of entrance examination, scrutiny of applications, evaluation, the
expenditure relating to introduction of optical mark reader system in admission
to various courses from the personal deposit account maintained by the
Secretary Selection Committee followed during 1998-99 shall be followed for the
academic year 1999-2000 also.
That
the Government possess 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 Post-Graduate 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 on 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.
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 centres, was
unconstitutional and when the matter was brought to this 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.
The
stipulations governing the selection for admissions in these cases have got to
be viewed and construed in the above backdrop of events and legal position. The
learned Single Judge, in our view, was certainly not right in equating the
provisions made for allocation of seats in the form of fixation of quota in this
case with the usual form of communal reservations and allowing himself to be
carried away by the peculiar method of working out such reservations in order
to ensure adequate representation to such candidates, and applying those
principles to construe a provision of the nature involved in these cases. Yet
another error in the reasoning of the learned Single Judge lies in his
assumption that open quota seats have to be thrown open to all and are meant
only to be filled up purely on the basis of merit performance and no one from
even the class of candidates in whose favour a special quota has already been
provided can be excluded from consideration as against the open quota.
This
reasoning of the learned Single Judge not only ignores the object and scheme
underlying the allocation of seats for admissions for the academic year
1999-2000, but has the consequence of rewriting the Prospectus and introducing
altogether a different pattern of admissions, overriding the policy of the
Government aimed at meeting out equal justice and affording equality of
opportunity to the different categories classified for the purpose. If the
Government can be said to possess the power to fix a quota for the exclusive
benefit of in-service candidates, it is beyond comprehension or dictates of
either reason or logic as to why the Government cannot equally exclusively
earmark the remaining seats in favour of non-service or private candidates,
thereby confining the claims of service candidates to the number of seats
earmarked and allocated to them. As there can be a classified category of
service candidates, it is open to the Government to make classification of all
those other than those falling in the category of service candidates, as
non-service candidates and allocate the remaining seats after allotment to the
service candidates for exclusive benefit of the source of non-service or
private candidates. There is nothing in law which deprive the Government of any
such powers and no such impediment has either been brought to our notice at the
time of hearing or seems to have been brought to the notice of the learned
Single Judge to warrant any such construction, as has been adopted by him. We
are also of the view that it does not lie in the mouth of the writ petitioners
to raise a bogey of selection based on merit alone, only in respect of a
portion of the seats available for admission to non- service candidates, when
they belong to and are part of a category or class who have got in their favour
fifty percent of the number of seats in each of the disciplines allocated to
their category of in-service candidates to be filled up exclusively from such
in-service candidates on the basis of their own inter se merit and not on the
overall merit performance of all the candidates - both in-service and
non-service put together. The writ petitioners are found to have applied as in-
service candidates and merely because they could not be selected within the
number of seats earmarked for their category or class on the basis of the inter
se merits among their own class, they cannot be allowed to contend to the
contrary in retrospect and on hind sight experience of having obtained more
marks, than those who got selected as against the seats earmarked and allocated
to non-service candidates. The justification, both in law and on facts for
exclusive allocation and stipulation of a definite quota or number of seats for
non-service or private candidates, in our view, lies in the very principle
which warranted or enabled the fixation of a quota of fifty percent of seats
and exclusively allotted to in-service candidates. Any countenance of such
claims of the appellants is likely to also endanger the very allocation of 50%
of the seats exclusively to the category of in-service candidates, too.
On a
consideration of the reasoning of the Full Bench as also the construction
placed upon the Government Order and the Prospectus, we are of the view that
State Government, in the undoubted exercise of its power, has rightly decided,
as a matter of policy, so far as the admissions to super speciality and Post
Graduate Diploma/Degree/MDS courses for the academic session 1999-2000 are
concerned to have scheme or pattern of two sources of candidates based upon a
broad classification into two categories, i.e., in-service candidates and
non-service or private candidates with each one of them allocated exclusively
for their own respective category of candidates fifty percent of the seats, the
ultimate selection for admission depending upon the inter se merit performance
amongst their own category of candidates. As pointed out by the Full Bench, the
change in the nomenclature of the categorisation from open competition in
1998-1999, to open quota in 1999-2000 and the conspicuous omission in the
scheme and the Prospectus for 1999- 2000 of a specific stipulation like the one
contained in clause X (5) in the Prospectus for 1998-1999 that the 50% of the
seats available for open competition shall be made available for selection and
admission of both service and non-service candidates, as also the stipulation
contained in the Government Order and the Prospectus for 1999-2000 under the
caption criteria for selection under 50% open quota, which specifically reads
that all other eligible Medical Officers except those specified in clause
(iii)(d) above (meaning thereby Medical Officers who will be treated as service
candidates and allowed to apply as such) are eligible to apply under 50% of the
open quota, supports the stand of the State Government and the Selection
Committee and justify the selections for admission already made by them. The
further stipulation that the reservation will be confined to and kept at 50% in
favour of in-service candidates on merit basis, coupled with the other
provisions noticed above make it abundantly clear that the selection of
in-service candidates is confined to and has to be kept at 50% only of the
total seats and not against any of the other seats, exclusively earmarked for
the non-service or private candidates.
The
mere use of the word reservation per se does not have the consequence of ipso
facto applying the entire mechanism underlying the constitutional concept of a
protective reservation specially designed for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes to enable them to enter and adequately represented in various
fields. The meaning, content and purport of that expression will necessarily
depend upon the purpose and object with which it is used. Since reservation has
diverse natures and may be brought about in diverse ways with varied purposes
and manifold objects, the peculiar principles of interpretation laid down by
the Courts for implementing reservations envisaged under the Constitution in
order to ensure adequate and effective representation to the backward classes
as a whole cannot be readily applied, out of context and unmindful of the
purpose of reservations as the one made in this case, more to safeguard the
interest of candidates, who were already in service to enable such in-service
candidates to acquire higher and advanced education in specialised fields to
improve their professional talents for the benefit of the patients to be
treated in such Medical Institutions where the in-service candidates are
expected to serve. That apart, where the Scheme envisaged is not by way of a
mere reservation but is one of classification of the sources from which
admissions have to be accorded, fixation of respective quota for such
classified groups, the principles at times applied in construing provisions
relating to reservation simpliciter will have no relevance or application.
Though the prescription of a quota may involve in a general sense reservation
in favour of the particular class or category in whose favour a quota is fixed,
the concepts of reservation and fixation of quota drastically differ in their
purport and content as well as the object. Fixation of a quota in a given case
cannot be said to be the same as a mere reservation and whenever a quota is
fixed or provided for one or more of the classified group or category, the
candidates falling in or answering the description of different classified
groups in whose favour a respective quota is fixed have to confine their
respective claims against the quota fixed for each of such category, with no
one in one category having any right to stake a claim against the quota
earmarked for the other class or category.
Since
we are of the view that the Full Bench has correctly come to the conclusion
that the scheme adopted for selection of candidates for admissions in question
provided for a definite and fixed quota for the respective classified sources
of admission and the reasons assigned therefor do not suffer from any infirmity
whatsoever to call for any interference at our hands, these appeals fail and
are dismissed.
In
view of the above discussion, it is unnecessary for us to deal with the issue
of estoppel on which also the Full Bench has chosen to reject the claim of the
appellants. In view of the conclusion of ours in the appeals, the Writ Petition
also shall stand dismissed. There will be no order as to costs.
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