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Judgment
V. Ramasubramanian, J.—Admission to Post Graduate Medical Courses, without fail, has been the subject matter of litigation year after
year, under one pretext or the other and the batch of cases on hand belongs to the same genre.
For the first time, the Government of Tamil Nadu introduced a reservation of 50% of seats in Post Graduate Medical Courses, for in-service
candidates in the academic year 1999-2000. The stipulation was challenged in a batch of writ petitions, which eventually landed up in the Supreme
Court. The reservation was upheld by the Supreme Court in K. Duraisamy and Another Vs. The State of Tamil Nadu and Others, . Therefore, the
said pattern is in vogue in the State of Tamil Nadu since then.
However, until the last academic year {2008-2009}, several categories of employees came under the quota meant for service candidates as
seen from Clauses 54.b and 55 of the Prospectus for admission to Post Graduate Diploma/Degree/MDS/5 Year M.Ch. {Neuro Surgery
Courses} for the year 2008-2009. They read as follows:
54.b. 50% of seats in each branch and in each college are reserved for service candidates, in addition to those service candidates selected in the
open category. In case of an odd number of vacancy, the vacant seats shall be filled up by consideration of merit among both Service and Non-
Service candidates put together. The seats in MD/MS/5 year M.Ch. (Neuro Surgery)/MDS in the following specialities will be exclusively
reserved for service candidates:
Non-Clinical Clinical
1) MD Pathology 1) MD Psychiatric Medicine
2) MD Physiology 2) MD Radio Diagnosis
3) MD Bio-Chemistry 3) MD Radiotherapy
4) MD Microbiology 4) MD Anaesthesia
5) MD Forensic Medicine 5) MD TB & Chest Diseases
6) MD Pharmacology 6) 5 year M.Ch. (Neuro Surgery)
7) MD SPM 7) DMRD
8) MS Anatomy 8) DMRT
MDS
1) Community Dentistry
The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats.
Medical Officers selected by the TNPSC and appointed in Tamil Nadu Medical Services on regular basis, who have put in minimum of Three
Years continuous service as on 31.3.2008. This is subject to the final verdict of the Supreme Court of India in the SLP No. 2229/2005 filed by
this Government against the orders passed by the Bench of the High Court of Madras dated 23.12.2004 in W.A. No. 2091/2004 etc.
Medical Officers who are approved probationers and who have put in minimum of Three Years of continuous service as on 31.3.2008. This is
subject to the final verdict of the Supreme Court of India in the SLP No. 2229/2005 filed by this Government against the orders passed by the
Bench of the High Court of Madras dated 23.12.2004 in W.A. No. 2091/2004 etc.
Medical Officers serving (for three years) in:
(a) Local Bodies in Tamil Nadu (Except Medical Officers working in Panchayat Union part time or full time as the case may be, who have to be
treated as Non-Service Candidates).
(b) Government of India Institutions in Tamil Nadu.
(c) Public Sector Undertakings or Organisations under the control of Government of Tamil Nadu or Government of India in Tamil Nadu.
This is subject to the final verdict of the Supreme Court of India in the SLP No. 2229/2005 filed by this Government against the orders passed by
the Bench of the High Court of Madras dated 23.12.2004 in W.A. No. 2091/2004 etc.
But in the Prospectus for admission to the very same Courses for the year 2009-2010, a restricted meaning was given to the expression ""service
candidates"" under Clause 51 of the Prospectus. It will be useful to extract Clauses 54.b and 51 of the Prospectus for 2009-2010 as they
correspond to Clauses 54.b and 55 of the Prospectus for 2008-2009. They are as follows:
54.b. 50% of seats in each branch are reserved for service candidates, in addition to those service candidates selected in the open category. In
case of an odd number of vacancy that vacant seat shall be filled up by consideration of merit among Service candidates only.
The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats.
Medical Officers selected by the TNPSC and appointed in Tamil Nadu Medical Services on regular basis, who have put in minimum of two
years of continuous service as on 31.3.2009.
Medical Officers serving (for two years) in Local Bodies of Tamil Nadu.
Aggrieved by such a restriction imposed upon the expression ""service candidates"", a few candidates working as Medical Officers in Institutions
such as Ordnance Factory, Tiruchirapalli, Employees'' State Insurance Corporation Hospitals, Central Government Health Scheme Hospitals,
Railway Hospital and Tuticorin Port Trust Hospital, have come up with the writ petitions W.P.Nos.2089, 2267, 3100, 3101 and 3792 of 2009,
seeking either a direction to treat the Medical Officers serving in the hospitals of the Government of India, Public Sector Undertakings etc., as
service candidates entitled to compete under the 50% quota or a declaration that the restriction of the benefit only to those serving in the hospitals
of the Government of Tamil Nadu or local bodies as ultra vires Article 14 of the Constitution. The petitioners in these five writ petitions are on
common ground.
The petitioner in W.P. No. 3985 of 2009 is a candidate to whom the benefit of the quota applies. Therefore, he is not aggrieved by the
restriction of the benefit only to the employees serving in the hospitals of the Government of Tamil Nadu and the local bodies. But he is aggrieved
by the stipulation contained in the Prospectus for the award of additional marks for rural service.
In contrast to the other writ petitions, the petitioner in W.P. No. 5078 of 2009 does not claim to be employed in any hospital of the Central
Government or State Government or any Public Sector Undertaking. Therefore he has not challenged either the prescription of 50% quota for in-
service candidates or the restriction now imposed in the current academic year. However, he is aggrieved by the award of marks for services
rendered in rural areas and hill areas under the caption ""Experience"" in the Prospectus.
Thus, in effect, we have on hand, 3 sets of writ petitions viz., (i) a batch of 5 writ petitions in which, the petitioners working in the hospitals of the
Central Government and Public Sector Undertakings, seek the continuation of the benefit of the quota reserved for in-service candidates that they
have enjoyed till last year (ii) one writ petition by an in-service candidate challenging the award of marks for service in rural areas and (iii) one writ
petition by an unemployed (or perhaps privately employed) candidate challenging the award of marks for service in rural areas and hill areas.
Since the counselling for in-service candidates is slated to begin from 1.4.2009, all the writ petitions were taken up for disposal, by the consent
of parties and I have heard Mr. K.M.Vijayan and Mr. R. Muthukumaraswamy, learned Senior Counsel, and Ms. Kavitha Deenadayalan, learned
Counsel appearing for the petitioners and Mr. G. Sankaran, learned Special Government Pleader (Education).
As stated earlier, the vires of the very quota reserved for in-service candidates, for admission to Post Graduate Medical Courses, has already
been upheld by the Apex Court in K.Duraisamy''s case. The ratio laid down in K. Duraisamy''s case, was encapsulised by the Supreme Court in
paragraph-19 of its decision in The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, as follows:
(i) 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;
(ii) that such allocation of seats in the form of fixation of quota is not to be equated with the usual form of communal reservation and, therefore, the
constitutional and legal considerations relevant to communal reservations are out of place while deciding the case based on such allocation of seats;
(iii) that such exclusive allocation and stipulation of a definite quota or number of seats between in-service and non-service or private candidates
provided two separate channels of entry and a candidate belonging to one exclusive quota cannot claim to steal a march into another exclusive
quota by advancing a claim based on merit. Inter se merit of the candidates in each quota shall be determined based on the merit performance of
the candidates belonging to that quota;
(iv) that the mere use of the word ""reservation'' per se is not decisive of the nature of allocation. Whether it is a reservation or an allocation of seats
for the purpose of providing two separate and exclusive sources of entry would depend on the purpose and object with which the expression has
been used and that would be determinative of the meaning, content and purport of the expression. Where the scheme envisages not a mere
reservation but is one for classification of the sources from which admissions are to be accorded, fixation of respective quota for such classified
groups does not attract applicability of considerations relevant to reservation simpliciter.
In A.I.I.M.S. Students Union Vs. A.I.I.M.S. and Others, , the Supreme Court considered the decision in K.Duraisamy''s case and stated in
paragraph-31 as follows:
Permitting in-service candidates to do postgraduation by opening a separate channel for admittance would enable their continuance in Government
Service after postgraduation which would enrich health services of the nation. Candidates in open category having qualified in postgraduation may
not necessarily feel attracted to public services. Providing two sources of entry at the postgraduation level in a certain proportion between in-
service candidates and other candidates thus achieves the laudable object of making available better doctors both in public sector and as private
practitioners. The object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to
provide protection and encouragement to one at the entry level.
Therefore the classification made between in-service candidates and other candidates cannot be questioned anymore since the issue is no
longer res integra. However, the dispute now raised is as to whether a further classification between persons in the services of the State
Government and those in other public services (such as Central Government, Port Trust, ESI, Railway Hospitals) would stand the test of
reasonableness within the meaning of Article 14.
In The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, , arising out of the reservation of 20% of seats for admission
to Post Graduate Medical Courses to in-service candidates, the Supreme Court reiterated, in paragraph-21 of its judgment, as to when the test of
reasonable classification would be satisfied, on the following lines:
To withstand the test of reasonable classification within the meaning of Article 14 of the Constitution, it is well settled that the classification must
satisfy the twin tests: (i) it must be founded on an intelligible differentia which distinguishes persons or things placed in a group from those left out or
placed not in the group, and (ii) the differentia must have a rational relation with the object sought to be achieved. It is permissible to use territories
or the nature of the objects or occupations or the like as the basis for classification. So long as there is a nexus between the basis of classification
and the object sought to be achieved, the classification is valid.
Therefore what is to be seen in the present batch of cases is whether those twin tests are satisfied or not.
There may not be any difficulty in concluding that the classification now made, would pass the first test. Until last year, the following persons
were considered under the category of service candidates:
(i) Medical Officers selected by the Tamil Nadu Public Service Commission and appointed to the Tamil Nadu Medical Services on regular basis,
who have put in 3 years of continuous service.
(ii) Medical Officers serving for 3 years in local bodies in Tamil Nadu except those working in Panchayat Unions on part time or full time basis.
(iii) Medical Officers serving for 3 years in Government of India Institutions in Tamil Nadu.
(iv) Medical Officers serving for 3 years in Public Sector Undertakings or Organisations under the control of the Government of Tamil Nadu or
Government of India in Tamil Nadu.
But by the Prospectus in question, only the Medical Officers selected by Tamil Nadu Public Service Commission and appointed to the Tamil
Nadu Medical Services on regular basis, who have put in a minimum of 2 years of continuous service and those Medical Officers serving for 2
years in local bodies of Tamil Nadu alone are sought to be treated as service candidates. In other words, a distinction is now sought to be made
between those serving in Tamil Nadu Medical Services and in the services of the local bodies in Tamil Nadu on the one hand and those not
employed in these services. This distinction is founded on intelligible differentia and hence it passes the first test of reasonableness.
However Mr. K.M.Vijayan, learned Senior Counsel contended that the word ""service"" appearing in the Prospectus has a larger connotation in
the context of the constitutional provisions and that the word ""State"" cannot also be understood to mean the ""State Government"", in view of Article
12 of the Constitution.
But I am unable to countenance the above submission. In Clause 54.b of the Prospectus of the previous years, it was stated that 50% of seats
will be reserved for ""service candidates"". The categories of Medical Officers who would be treated as service candidates, were enlisted in Clause
55 of the Prospectus of the previous years. Even until last year, the expressions ""service candidates"" and ""State"" were not understood in the
context of Article 12 of the Constitution. These expressions were given only restricted meanings even in the previous years, in the sense that all
persons employed in Government Service (State or Central) were not treated as service candidates till last year. It was only those who were
serving in the State of Tamil Nadu in any of the hospitals of the Central Government, State Government, Public Sector Undertakings/
Organisations and local bodies, that were treated as service candidates. Medical Officers serving outside Tamil Nadu, in the hospitals of Central
Government or Public Sector Undertakings/Organisations, were not treated as service candidates. A geographical restriction was imposed even
among those serving in the Central Government or Public Sector Undertakings, to be eligible for the benefit of the quota till last year. In other
words, a person working in the hospital of the ESI Corporation, when posted within the State of Tamil Nadu was made eligible for the quota until
last year, though another Medical Officer working in the hospital of the same Corporation posted outside Tamil Nadu, was made ineligible. Such a
differentia has already attained the seal of approval from the Apex Court. Therefore, it is not now permissible to import the meaning of these words
from the provisions of the Constitution. That an Institution which may be treated as a ""State"" for the purpose of Article 12, need not necessarily be
identified with or treated as ""the State Government"" is made clear by the Apex Court in State of Assam Vs. Barak Upatyaka D.U. Karmachari
Sanstha, . The word ""State"" appearing in Article 12 of the Constitution has a different connotation from the same word appearing in Article 309,
since the latter is primarily concerned with public services and posts in connection with the affairs of the Union or of the States. If the distinction
made between two persons serving in the same Institution, say Railway Hospital or ESI Hospital, on the basis of their place of posting {Tamil
Nadu and elsewhere}, is treated as intelligible differentia, there is no reason as to why, the distinction between a person working in the State
Services and a person working in other services cannot pass the test of intelligible differentia. After all, the distinction sought to be made must be
real and existential. Once it is real and existential, it would pass the first test.
In support of his contention that the classification will not satisfy the first test, Mr. R. Muthukumaraswamy, learned Senior Counsel for the
petitioners relied upon a decision of the Supreme Court in Deepak Sibal v. Punjab University and Anr. 1989 (1) U.J. (SC) 512. In paragraph-14
of the said decision, the Supreme Court held that the exclusion of the employees of private establishments will not satisfy the test of intelligible
differentia that distinguishes the employees of Government Institutions. But the said case arose out of a rule introduced by the Department of Law
of the Punjab University, restricting the admission to the evening classes of the Three year LLB degree, only to regular employees of the
Government/Semi Government Institutions. Persons in private employment were totally barred from applying for the evening Law Degree Course.
Thus it was a case of 100% reservation of admission to evening Law Degree Course, to State Government employees. The University sought to
explain it as intelligible differentia by contending that the State Government employees have no opportunity to attend the day college. But the Apex
court pointed out that even private employees suffer the same kind of disadvantage. It is in such a context that the Supreme Court said that there
was no intelligible differentia between the two categories of employees. Therefore the said decision is of no assistance.
Coming to the second test relating to the nexus with the object sought to be achieved, it is seen from paragraph-3 of the common counter
affidavit filed by the respondents that the respondents seek to justify the classification as reasonable, on the basis of certain facts and figures. Upto
the year 2005-2006, the State was required to surrender 25% of the total number of seats for the All India Quota. But from the year 2005-2006,
it was increased to 50%. The total number of seats available in Post Graduate Degree/Diploma Courses in all the Government Institutions in the
State of Tamil Nadu is stated to be 909. Therefore only about 450 seats are available to be filled up by the State Government, out of which half
the number of seats would go to the open category and the remaining half {namely about 225 seats} alone are available under the quota reserved
for service candidates.
In paragraphs-5 and 6 of the common counter affidavit, it is stated by the respondents that there are 15 Government Medical Colleges in the
State of Tamil Nadu and the Government had already sanctioned 4 new Medical Colleges for the academic year 2009-2010 at Perambalur,
Sivaganga, Tiruvarur and Villupuram. In order to be able to get recognition and affiliation for a Medical College, there is a requirement to have 45
Professors and 150 Assistant Professors qualified with a Post Graduate Degree/Diploma, for teaching Undergraduate Courses. According to the
respondents, there is a severe dearth of Medical Officers holding a Post Graduate Degree/Diploma in the State, which has made it impossible for
the State to increase the number of seats in Institutions which are already in existence for several decades.
In paragraph-7 of the counter affidavit, it is stated that there are about 30 District Headquarters Hospitals and 160 Taluk Hospitals that are
Secondary Health Care Centres, where the services of Medical Officers with Post Graduate Degrees/Diplomas are required, to enable the
Government to provide quality health care to the poor and the needy people of the State. According to the respondents, there are no Specialists
available in these Institutions for want of hands, despite the fact that necessary infrastructure has already been created.
Therefore, according to the respondents, the only way in which the Health Care provided to the people of the State can be increased both
quantitatively and qualitatively, is to restrict the quota available for service candidates, only to those Medical Officers appointed through Tamil
Nadu Public Service Commission to the Tamil Nadu Medical Services and to those serving in local bodies of the State of Tamil Nadu.
Thus, in essence, the object sought to be achieved by the classification, is to fulfil the health care needs of the people of the State. By restricting
the benefit of the quota reserved for service candidates only to those in Tamil Nadu Medical Services or in the services of the local bodies of the
State of Tamil Nadu, the said object is sought to be achieved. Therefore, in my considered view, there is certainly a nexus between the
classification and the object sought to be achieved by the classification.
As a matter of fact, the Prospectus of yesteryears and the Prospectus of the current year contain certain stipulations, which also give a hint
about the object for which a quota was made in the first instance for service candidates. They are as follows:
(i) Clause 21 of the Prospectus for the year 2008-2009 as well as Clause 8 of the Prospectus for the year 2009-2010, make it clear that
candidates who have already completed a Post Graduate Degree or candidates who already possess a Post Graduate Degree are not eligible to
apply for admission to any other Post Graduate Degree/Diploma Course. This ensures that no seat is ultimately rendered a waste, by a Post
Graduate Degree holder in one speciality, switching over to another speciality.
(ii) Clause 57 of the Prospectus for the year 2008-2009, made it obligatory for candidates serving in Undertakings or Organisations of the
Government of Tamil Nadu or the Government of India in Tamil Nadu, to execute an undertaking and bond that they will serve the parent
Institution for a period of 15 years after completing the Post Graduate Course or upto superannuation whichever is applicable and that they should
produce a Certificate to that effect from their parent Institution at the time of admission. Similarly, Clause 64(c) of the Prospectus for the year
2008-2009, made it obligatory for the service candidates to execute a bond for Rs. 5 lakhs and Rs. 10 lakhs respectively for Post Graduate
Diploma and Degree Courses and Clause 64(d) imposed a similar obligation upon non-service candidates to execute a bond for Rs. 3 lakhs and
Rs. 5 lakhs respectively. The bond was in the nature of a security to ensure that the service candidates serve the Government of Tamil Nadu till
superannuation and the non-service candidates will serve the Government of Tamil Nadu for a period of 2 years, if so required. Similar obligation
is imposed upon the service candidates as well as non-service candidates, in the Prospectus for the year 2009-2010 under Clauses 59 (c) and 59
(g) respectively. These Clauses make it clear that the object of providing Post Graduate Education in Medicine, at a subsidised rate, was to ensure
that the health care needs of the people of the State are improved with the services to be rendered by the beneficiaries of such education.
(iii) Clause 64 (b) of the Prospectus for the previous year and Clause 59 (d) of the Prospectus for the current year contain a statement to the effect
that the Government of Tamil Nadu was spending a large amount of money to impart medical education at nominal fees, even while providing
stipend to private candidates and salary to service candidates and that the Government was looking forward to these Doctors to serve the poor
and the needy of the country at large and the State in particular.
(iv) The Prospectus for the current year {2009-2010} contains an additional stipulation in Clause 59 (d) and (f), which was not found in the
Prospectus of yesteryears. This Clause reads as follows:
59 (d) All service candidates of Tamil Nadu who have less than 5 years of service after passing PG Degree/Diploma Courses have to serve the
Government for a period of 5 years from the date of passing the examination irrespective of the date of superannuation, if the Government requires
their services. They will be paid salary/stipend till superannuation only. They have to furnish an undertaking to this effect at the time of joining the
course.
54 (f) Both Service and Non-service candidates who complete the following scarce specialities will have to work for a period of 5 years after
passing the Course, if they attain superannuation before completion of Course, if the Government requires their services. They should also furnish
an undertaking to this effect at the time of joining the Course.
The introduction of the above Clauses for the current year only substantiates the averments contained in the common counter affidavit that there is
a dearth of qualified Medical Officers with Post Graduate Degrees/ Diplomas and that the State is struggling hard to maintain the balance between
the supply and demand. Therefore the classification between persons employed in the Tamil Nadu Medical Services on the one hand and those
employed in Central Government or Public Sector Undertakings even in the State of Tamil Nadu, certainly has a nexus with the object sought to
be achieved.
Moreover, the respondents have an additional justification for the classification that they have made. Apart from executing a bond, as per the
Clauses contained in the Prospectus referred to above, the respondents were also having the practice of taking the original MBBS Degree
Certificates and other Certificates from candidates who are admitted to the Post Graduate Courses. The respondents were retaining the original
Certificates, even after the candidates completed the Post Graduate Courses, with a view to bind them to the bond and undertaking executed by
them. But most of the candidates, whose Certificates were so retained, came up before this Court in a batch of writ petitions and this Court
allowed all the writ petitions, directing the respondents to return the original Certificates, but giving liberty to the respondents to enforce the bond, if
there was a breach. It is trite to point out that for enforcing the bond, the Government will have to file suits against these candidates. In any case,
the intention of the Government is not to recover the bond amount but to make these candidates serve in the Government Institutions, after
completing the Post Graduate Courses. Therefore the prescription of a bond and undertaking, has not enabled the Government to realise the
object sought to be fulfilled by the classification that was in existence till last year. Hence, the Government had to look for another alternative to
achieve the objective, which has led to this fine tuning of the classification. Therefore I am unable to accept the contention that the classification is
violative of Article 14.
In fact, the cry of the Government that there is dearth of qualified hands at the Post Graduate Level, does not appear to be a bogey created for
the purpose of justifying the classification. There are certain other measures taken by the Government to ensure that the holders of Post Graduate
Medical Degrees/Diplomas render services in the State Government till they attain the age of superannuation. To begin with, the Government
issued the following orders, declaring certain categories of employees as scarce categories and banned the issue of No Objection Certificates for
employment abroad:
G.O.(Ms) No. 133, Health and Family Welfare Department, dated 17.1.1989.
G.O.(D) No. 1265, Health and Family Welfare Department, dated 18.11.2004.
G.O.(Ms) No. 434, Health and Family Welfare Department, dated 10.6.2005.
G.O.(2D) No. 73, Health and Family Welfare Department, dated 8.8.2006.
G.O.(D) No. 53, Health and Family Welfare Department, dated 23.5.2007.
The categories of persons who were declared as scarce, by the above Government Orders, were Medical Officers in the specialities of
Nephrology, Neuro Surgery, Anaesthesia, Oncology, Vascular Surgery, Cardiology, Cardio Thoratic Surgery, Neurology, Radio Diagnosis and
Radio Theraphy, Psychiatry, Thoracic Medicine, Geriatrics, Diabetology, Urology, Haematology, Rheumatology, Physical Medicine and all
Specialities in MDS on the Clinical side and Anatomy, Physiology, Pharmacology, Forensic Medicine, Community Medicine and Biochemistry on
the Non-Clinical side.
By a subsequent order in G.O.Ms. No. 315, Health and Family Welfare (B1) Department, dated 31.8.2007, the Government declared all
specialities in Tamil Nadu Medical Services as scarce categories and directed that the Medical Officers in all specialities should not be granted ""No
Objection Certificate"" for taking up employment abroad.
Apart from declaring all specialities in Tamil Nadu Medical Services to be scarce categories, the Government also brought an amendment to
Fundamental Rule 56 (3) (f), under G.O.Ms. No. 179, Personnel and Administrative Reforms (FR-IV) Department, dated 29.9.2008. This
amendment was issued in exercise of the powers conferred by the proviso to Article 309 and 313 of the Constitution and the amendment was
given effect retrospectively from 3.11.2006, the date on which an executive instruction to the effect was issued by the Government. By the said
amendment, a proviso was added after the proviso to FR 56 (3)(f) and it reads as follows:
Provided further that the appointing authority may also withhold the permission for voluntary retirement sought for by a Government servant, if the
post held by him has been declared as ""Scarce Category"" by the Administrative Department concerned in Secretariat and whose continuation in
Government service is absolutely essential in public interest.
Therefore, the Medical Officers belonging to specialities, in Tamil Nadu Medical Services, are not even entitled to walk out on voluntary
retirement, as of right, even after completing 20/25 years of service. Such a restriction, corroborates the stand taken by the Government that there
is dearth of hands at the higher level and that the present classification is aimed at resolving the problem to some extent. Therefore, there is a nexus
between the classification and the object sought to be achieved by the classification.
In Kripa Shankar Chatterji Vs. Gurudas Chatterjee and others, , it was held in paragraph-1 as follows:
The material resources of this country are limited. Indeed this is so for every country. The resource-crunch is, however, acute for us; and so
whenever and wherever public money is invested, it has to be seen that there is a proper utilisation of the same in the sense that the public
ultimately gets benefit of the same.
The above passage, among other things, was relied upon, by a Division Bench of this Court in M. Elumalai, P. Mallika, V. Selvi and S.
Kalaiselvi Vs. M. Bhuvaneswari and Others, , arising out of a challenge to the policy of the Government to appoint only those who had studied in
Government Nursing Colleges as Staff Nurses in the Government Hospitals. The challenge was rejected, on the ground that the students of
Government Nursing Colleges stand on a different footing from the students of Private Nursing Colleges, since the Government was spending a
huge amount of money on the students trained in Government Nursing Colleges and that therefore the classification was reasonable. Therefore the
subsidised higher education in medicine offered in Government Medical Colleges, provides the Government, a justification for expecting the
beneficiaries to serve the society at large.
There can be no doubt about the fact that the State Government will have no control whatsoever, over the Medical Officers employed in
Central Government or Public Sector Undertakings. Any amount of undertaking given by those Medical Officers to their employers, cannot really
be enforced by the State Government, due to lack of privity of contract. The State Government may not be able to compel the Central
Government or the Public Sector Undertaking to ensure that those Medical Officers who complete Post Graduate Courses continue to serve the
Central Government or the Public Sector Undertaking. Even if the State Government succeeds in prevailing upon the Central Government or the
Public Sector Undertaking in ensuring the retention of those Medical Officers in service till their superannuation, the State Government cannot
compel the Central Government or the Public Sector Undertaking to post those Medical Officers always in the State of Tamil Nadu till their
retirement. Medical Officers working in ESI Corporation, Railways etc., are liable to be transferred to any place in the country. The power of the
employer to transfer them cannot be curtailed by the State Government by the undertaking that they obtain. In other words, the State Government
will not be able to ensure that the services of these Medical Officers are available to the local population. It is in these circumstances that the
Government had come up with a new policy in the current year to treat only those serving in the Tamil Nadu Medical Services and those serving in
local bodies in Tamil Nadu as service candidates. Therefore it cannot be found fault with.
Lastly Mr. K.M. Vijayan, learned Senior Counsel contended that there cannot be a discrimination between one person and another person
within a State, especially when both of them serve the public, through different Institutions run by the State or the Central Government or Public
Sector Undertakings. In support of the said contention, the learned Senior Counsel relied upon the decision of the Constitution Bench of the
Supreme Court in A. V. S. Narasimha Rao and Others Vs. The State of Andhra Pradesh and Another, .
If the above contention is accepted, then the very classification between a person in public services in the State and a person in private
employment within the State, cannot also be accepted. But the said classification has received the seal of approval in K.Duraisamy''s case.
Moreover, it is not a case of discrimination between two persons working in the same State. It is a classification made between one person on
whose services the State has a control, so as to compel him to serve the people of the State till the age of retirement and another person on whom
the State has no such control, though both of them are within the State for the present. As stated earlier, the State Government does not even have
a control over the other types of persons to ensure that their employers retain them in the State of Tamil Nadu throughout their tenure. Therefore,
the above argument of the learned Senior Counsel cannot be accepted.
As stated earlier, there are two writ petitions, in which a challenge is made to the allotment of marks for rural service and service in hill areas.
The challenge in one writ petition is by a candidate who comes within the meaning of the expression ""service candidate"". His grievance is that at the
time when he was selected for appointment, he was offered a posting in a town, on account of his ranking in the merit list. Persons down below in
the merit list were posted to rural areas. At the time of posting, he had no idea that separate marks will be awarded for rural service. Therefore he
accepted the posting. But the policy to award marks for rural service has come as a bolt out of the blue, rewarding the less meritorious, who were
allotted to rural service.
The challenge in the other writ petition is by a candidate who is not in employment and his challenge is to the award of marks both for rural
service and for service in hill areas. According to this petitioner, the service candidates who already have the benefit of quota, will also gain extra
marks on account of these special marks and score a march over general category candidates even in the remaining 50% quota.
But even at the outset, the contentions of these two writ petitioners are misconceived. The award of marks for experience/service is subject to
a maximum of 10 marks. Clause 45(a) of the Prospectus for the year 2008-2009 reads as follows:
45(a) One mark for each completed year after the completion of CRRI shall be awarded as marks for experience for both service/non service
candidates to a maximum of Ten marks as on 31.03.2008. 2 marks will be awarded to each completed year of Government service in hilly areas
and it will be awarded to a maximum of 5 years i.e., 10 marks for 5 years instead of 5 marks in other cases. Altogether the total marks awarded
for experience/service will be restricted to 10 marks to all candidates including candidates from hilly areas.
1) Marks awarded for Entrance examination: Maximum 90 marks.
2) Experience marks for all candidates: 1 mark per year to a maximum of 10 marks.
3) Experience marks for candidates from hilly areas: 2 marks per year of service in hilly areas to a maximum of 10 marks for 5 years.
b) Fractional values of a year will not be counted for awarding marks for experience and experience in hilly regions.
Clause 41(a) of the Prospectus for the year 2009-2010 reads as follows:
41(a) One mark for each completed year after the completion of CRRI shall be awarded as marks for experience for both service/non service
candidates to a maximum of Ten marks as on 31.03.2009. 2 marks will be awarded to each completed year of Government service in hilly areas
and it will be awarded to a maximum of 10 marks. Altogether the total marks awarded for experience/service will be restricted to 10 marks to all
candidates including candidates from hilly areas.
1) Marks awarded for Entrance examination: Maximum 90 marks.
2) Experience marks for all candidates to a maximum of 10:
a) One mark per year to a maximum of 10 marks.
b) Marks for candidates served in rural and hill areas:- One mark per year of service in rural areas and two marks per year of service in hill areas
limited to a maximum of ten marks.
c) Fractional values of a year will not be counted for awarding marks for experience and experience in rural/hilly regions.
A reading of the above Clauses would show that the award of marks for services rendered in rural areas or hill areas, is subject to a maximum of
10 marks. Even non service candidates are entitled to 1 mark for each completed year after the completion of CRRI. Therefore the apprehension
of the petitioners as though service candidates will gain by leaps and bounds, is not well founded, since the award of marks for experience is for
the benefit of both categories.
In any case, the issue is no longer res integra. In The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, , the Supreme
Court considered, from paragraphs-29 to 33, the question as to whether weightage can be given to Doctors for having rendered specified number
of years of service in Rural/Tribal areas. After referring to the decisions in Dr. Dinesh Kumar and Others (II) Vs. Motilal Nehru Medical College,
Allahabad and Others, , Dr. Snehelata Patnaik and Others Vs. State of Orissa and Others, and Dr. Narayan Sharma and Another etc. Vs. Dr.
Pankaj Kr. Lehkar and Others etc., , the Court held in paragraph-36.4 as follows:
It is permissible to assign a reasonable weightage to services rendered in rural/tribal areas by the in-service candidates for the purpose of
determining inter se merit within the class of in-service candidates who have qualified in the pre-PG test by securing the minimum qualifying marks
as prescribed by the Medical Council of India.
Incidentally, this Madhya Pradesh case arose out of a challenge to a reservation of 20% of the seats in Post Graduate Medical Courses, to the
employees of the Government of Madhya Pradesh and the same was upheld. Therefore I see no substance even in the challenge to the award of
marks for rural and hill area service.
In the result, I find no factual or legal basis to grant the reliefs sought for in these writ petitions. Hence all the writ petitions are dismissed. No
costs. Consequently all the miscellaneous petitions are also dismissed.