Dr. K.P. Manimaran vs The State of Tamil Nadu

N.V. Balasubramanian, J.—I Am Of The View That It Will Be Appropriate To Begin The Judgment With The Following Observation

Made By R.C. Lahoti, J. In STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC):-

Imparting Instruction And Giving Education Was Philanthropy - A Pious Duty - In The Past, And Later A Service. In Recent Times It Has

Developed Into A Business And Now It Stands Recognised As An Industry. A Sizeable Amount Of Litigation Centres Around Medical

Education. The National Wealth Of Available Seats Is Scarce While The Aspirants, Desirous Of Sharing Such Wealth, Are Numerous. Every

Attempt At Laying Down Criteria For Choosing The More Deserving Out Of The Several Aspirants Is Subjected To Challenge Before The

Constitutional Courts Of The Country.

The Admission To Professional Courses Is An Annual Feature And Equally, Challenge To The Admission In Most Of The Courses, Particularly

The Medical Courses And More Particularly In P.G. Medical Courses Has Become An Annual Feature, With The Result, Almost Every Year

Several Writ Petitions Are Filed On The File Of This Court Challenging The Mode Of Admission, And Several Clauses Contained In The

Prospectus Issued By The Authorities Are Challenged. Though This Court Has Upheld Some Of The Rules And Struck Down Some Other Rules,

I Find That There Is A Constant Tinkering Of The Clauses Contained In The Prospectus Issued For Each Year Leading To Great Uncertainty In

Each Year''s Admission In Professional Courses. I Am Of The View, It Will Be Better If A Consistent Policy Is Adopted By The State At Least

For A Minimum Period Of Five Years, Whatever May Be The Provocation For Amendment Of The Clauses Contained In The Prospectus To

Avoid Uncertainty In Admissions.

The Clauses Under Challenge In The Above Writ Petitions Are Clauses-21 And 23 Of The Prospectus Issued For Postgraduate

Degree/Diploma/5 Year M.Ch. (Neuro Surgery) Courses For The Academic Year 2003-2004 And The Clauses Read As Under:-

Clause-21:- Candidates Who Are Undergoing A Postgraduate Diploma In Any Discipline Are Not Eligible To Apply For Any Other Diploma

Course. However Those Who Are Completing Their Diploma Courses On Or Before 27.04.2003 Can Apply For Postgraduate Degree In The

Concerned Discipline Only, Provided They Produce Certificate From The Head Of The Institution Where They Are Undergoing The Diploma

Course To The Effect That They Will Be Completing The Course On Or Before 27.04.2003.

Clause-23:- Candidates Who Have Already Completed Or Acquired A Postgraduate Diploma Course In Any Discipline Are Eligible To Apply

For Postgraduate Degree Course Only In The Concerned Discipline And Are Not Eligible For Any Other Postgraduate Diploma/Degree

Courses.

The Validity Of Clause I(9) Of General Instructions Contained In The Prospectus For The Academic Year 1997-98, Which Is Similar To

Clause-23, Was Subject Matter Of Consideration Of This Court In A Batch Of Writ Petitions In W.P. No. 1741 Of 1997, Etc. And The Clause

Which Was Subject Matter Of Consideration In Those Writ Petitions Stood As Under:

Clause-I(9):- A Candidate Who Has Already Acquired A Postgraduate Diploma Course In Any One Discipline Is Eligible To Apply For

Postgraduate Degree Course In That Discipline During 97-98"".

The Validity Of The Clause-I(9) Of The General Instructions Was Considered By Mr. S.S. Subramani, J. In W.P. No. 1741 Of 1997, Etc.

Batch And By Judgment Dated 9.9.1997, Learned Judge Allowed The Writ Petitions On The Ground That The Clause Was Violative Of Article

14 Of The Constitution Of India. Learned Judge Held That There Should Be No Discrimination Between One Person And Another If, As

Regards The Subject Matter, Their Position Is The Same.

The Present Clause-23 Has Been Introduced To Get Over The Lacuna Pointed By Mr. S.S. Subramani, J. In The Unreported Decision, Cited

Supra, Providing That It Would Apply Not Only To The Candidates Who Already Appeared For Postgraduate Diploma Course In Any

Discipline, But Also To The Candidates Who Have Completed The Postgraduate Diploma Course In Any Discipline. The Further Addition In The

Present Clause-23 Is That Candidates Who Have Already Completed Or Acquired A Postgraduate Diploma Course In One Discipline Are Not

Eligible For Any Other Postgraduate Diploma/Degree Course.

Mr. R. Krishnamoorthy, Learned Senior Counsel Appearing For The Petitioner In W.P. No. 15257 Of 2003 Submitted That The Minimum

Prescribed Educational Qualifications Should Alone Be The Criteria For Admission And The Diploma Qualification Is Not Necessary To Apply

For Postgraduate Degree Course. Learned Senior Counsel After Referring To Clause-16(B) Of The Prospectus Submitted That If A Candidate

Secures Postgraduate Diploma In One Discipline, The Duration Of Postgraduate Degree Course Is Two Years In The Same Speciality And Three

Years In The Case Of Other Speciality. Learned Senior Counsel Submitted That On The Basis Of Clauses-13 And 16 Of The Prospectus, The

Petitioners Are Eligible To Apply For The Postgraduate Degree Course In Any Discipline And Clause-23 Is Arbitrary And Unreasonable As The

Merit Which Is The Sole Criterion For Admission Is Sacrificed By The Operation Of Clause-23 Of The Prospectus. Learned Senior Counsel

Also Referred To Clause-28 Of The Prospectus And Submitted That In The Counselling The Admission Is Made On The Basis Of Merit And

Under The Same Clause-28, It Is Open To The Candidates To Choose Any Of The Discipline And The College Available At The Time Of

Counselling And If Clause-23 Is Applied In Strict Sense, The Merit Which Is The Sole Basis For Admission Is Given A Go-By And The Person

With Lesser Merit Than A Candidate With Higher Merit Would Gain Admission. Learned Senior Counsel Also Referred To The Annexure-III,

Tentative Seat Matrix"" Both For Degree Course And Diploma Course And Submitted That There Are Many Diploma Courses For Which There

Are No Corresponding Postgraduate Degree Courses And Similarly, There Are Many Postgraduate Degree Courses For Which There Are No

Corresponding Postgraduate Diploma Courses. Learned Senior Counsel Submitted That The Additional Qualification Of Securing A Diploma Has

Become A Disqualification And The Knowledge Bank Cannot Be Regarded As A Disqualification. Learned Senior Counsel Submitted That The

Eligibility For Admission In The Postgraduate Degree Courses Is The Marks Obtained In The Common Entrance Examination And If There Is

Any Dilution Of Quality And If The Merit Is Given A Go-By By The Operation Of Clause-23 Of The Prospectus, It Will Be Violative Of Article

14 Of The Constitution Of India. Learned Senior Counsel Also Submitted That There Are Two Sets Of Procedure For Admission And In So Far

As Candidates Coming Under All India Entrance Examinations Are Concerned , The Bar Prescribed In Clause-23 Of The Prospectus Issued By

The Respondents Does Not Operate Against Them, But It Would Operate Only Against The Candidates Seeking Admission On The Basis Of

Prospectus For The Year 2003-2004 Issued By The Respondents. Learned Senior Counsel Also Referred To The Prospectus Issued By The

Manipal Academy Of Higher Education For The Year 2002 And Submitted That The Prospectus Issued By Manipal Academy Of Higher

Education Provides For Grant Of Additional Marks For The Person Having Qualification Of P.G. Diploma, But There Is No Such Provision

Awarding Additional Marks Or Weightage Found In The Prospectus In Question. Mr. R. Krishnamoorthy, Learned Senior Counsel Submitted

That More Than 6, 000 Candidates Have Taken Up Common Entrance Examinations And According To Him, M.D. Pediatrics Course Contains

A Total Number Of 24 Seats And Out Of 24 Seats, Six Seats Are Allotted To All India Category And Out Of Remaining Seats, Five Seats Are

Available Under Open Category And A Candidate With P.G. Diploma In Pediatrics, Even If He Has Secured Third Rank, He Would Not Be

Eligible, But A Candidate With Lesser Marks Would Become Eligible For Admission And By This Process, The Merit Of The Candidates Is

Completely Overlooked. He Therefore Submitted That There Is Unreasonableness And The Merit Is Given A Go-By By Operation Of Clause-23

Of The Prospectus. Learned Senior Counsel, In Support Of His Submission, Relied Upon The Unreported Decision Of This Court In W.P. No.

1741 Of 1997, Etc. Batch (Dr. K. Chinnusamy And Others v. State Of Tamil Nadu Rep. By Secretary To Govt., Health & Family Welfare

Department, Secretariat, Chennai-9 And Others) Dated 9.9.1997, The Decision Of The Supreme Court In Dr Dinesh Kumar and Others Vs.

Motilal Nehru Medical College, Allahabad and Others, , The Decision Of The Andhra Pradesh High Court In Shamsuder Rao Vs. State of

Andhra Pradesh and Others, And The Decision Of The Punjab And Haryana High Court In Tejinder Singh Sidhu Vs. State of Punjab and others,

.

Mr. V.K. Muthusamy, Learned Senior Counsel Appearing For Some Of The Petitioners Submitted That Clause-23 Should Be Construed With

Reference To Other Clauses Found In The Prospectus And Clause-23 Cannot Be Construed As A Prohibitory Clause. His Submission Is That

Harmonious Construction Of Various Clauses Should Be Given And If All The Clauses Are Read Together Applying The Principle Of Contextual

Interpretation, The Intention Is Clear That There Is An Implied Permission And The Clause 14 Or 16 Or 28 Would Operate Subject To Clause-

He Also Submitted That Acquisition Of Diploma Is Not Treated As A Speciality Course And Once Eligibility Criterion Is Satisfied, Clause-23

Cannot Be Put Against The Petitioners. He Also Referred To Clause-59 And Submitted That In So Far As 25 Percentage Of Seats Allotted For

All India Candidates Are Concerned, The Prohibition Does Not Apply And There Is Discrimination And Equals Are Treated Unequally. He Also

Submitted That Clause-28 Is Not Controlled By Clause-23 And The Effect Of Clause-23 Should Be Read So That It Cannot Override Other

Clauses Which Prescribe Eligibility Criteria For Admission.

Mr. K.M. Vijayan, Learned Senior Counsel Appearing For Some Other Petitioners Submitted That At The Time Of Eligibility Of Candidates,

No Classification Is Made And At The Time Of Selection Also, No Classification Is Made, But Only At The Time Of Admission, The

Classification Is Made And Since There Is Discrimination At The Time Of Admission, The State Government Has No Power To Make Such A

Classification At The Time Of Admission. He Also Submitted That In The Matter Of Selection, The Merit Is Given A Go-By And The

Respondents Cannot Prevent A Student From Seeking Admission To A Separate Discipline. He Also Submitted That The Clause Is Invalid In

View Of The Provisions Of The Medical Council Of India Regulations Framed u/s 33 Of The Medical Council Act. His Further Submission Is

That After Common Entrance Examinations, There Can Be No Scope To Prefer Some Of The Candidates And No Further Classification Is

Possible After Common Entrance Examinations. His Further Submission Is That Clause-23 Is Not A Separate Clause And It Must Be Construed

In The Light Of Other Clauses And The Prohibition Imposed In Clause-23 Is Violative Of Article 14 Of The Constitution Of India.

Mr. Raja And Mr. Sundar, Learned Counsel Who Are Appearing For Other Petitioners Also Advanced Arguments And They Referred To

Clause-28 And The Medical Council Of India Postgraduate Medical Education Regulations And Submitted That It Is Not Open To The State

Government To Select A Candidate Not On The Basis Of Merit And Deny Admission On The Ground That Candidate Has Earlier Secured

Postgraduate Diploma Course.

Learned Special Government Pleader (Education), On The Other Hand, Submitted That The Petitioners Are Not Having Any Fundamental

Right To Admission Or To Pursue Higher Education. He Referred To The Decisions Of The Supreme Court In Unni Krishnan, J.P. and others Vs.

State of Andhra Pradesh and others etc. etc., And Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., And

Submitted That The Petitioners Have No Vested Right Or Statutory Right To Pursue Higher Education And It Is Not Open To Them To Claim

Admission As A Matter Of Right. Learned Counsel Submitted That The Right To Seek Admission Is Limited Subject To The Compliance Of

Certain Basic Criteria And They Have No Right To Admission, But They Have Only A Right To Be Considered For Admission. He Also

Submitted That The Government Run Educational Institutions And They Have The Power To Regulate Admission Of Candidates And Clause-23

Is A Regulatory Clause And The Burden Is On The Petitioners To Prove That The Clause Is Violative Of The Provisions Of The Constitution And

The Petitioners Have Not Elaborated Or Proved That Clause-23 Is Violative Of Any Of The Provisions Of The Constitution And Clause-23 Has

Been Introduced Only With The Object That If A Person Has Already Secured A Postgraduate Diploma In One Discipline, He Must Pursue The

Postgraduate Degree Course In The Same Discipline And If He Is Allowed To Branch Off To Another Discipline, It Would Result In A Situation

That He May Not Be A Specialist In Two Branches. Learned Counsel Submitted That If There Are Candidates With Two Specialties, Then, It

Would Affect The Rights Of Other Candidates Who Have Not Even Secured Postgraduate Diploma Or Postgraduate Degree And Clause-23 Is

Not A Prohibitory Clause And Only Regulates The Mode Of Admission Permitting Candidates Who Have Secured Postgraduate Diploma To

Pursue Postgraduate Degree Course In The Same Discipline. He Submitted That The Candidates With Postgraduate Diploma Form One Group

And The Candidates Without Postgraduate Diploma Or Postgraduate Degree Form Another Group And There Are Two Different Groups And

Since They Fall In Two Different Groups, The Question Of Violation Of Article 14 Of The Constitution Does Not Arise. He Submitted That In

View Of The Availability Of Limited Number Of Seats In Postgraduate Degree Course In Medicines, The Clause-23 Has Been Introduced. He

Submitted That If A Person Who Has Secured Postgraduate Diploma In Pediatrics Is Allowed To Seek Admission In M.S. Ophthalmology, One

Candidate May Not Specialize In Pediatrics Or Another Candidate May Not Specialize In Ophthalmology With The Result, The Candidate, Who

Had Secured Postgraduate Diploma Or Postgraduate Degree In Two Specialties, May Not Be Able To Specialize In One Of The Disciplines And

The Clause Has Been Introduced Keeping In Mind The Public Interest So That Candidates Who Have Secured Diploma In A Particular

Postgraduate Faculty Should Pursue Further Course In That Line Only And He Cannot Deviate From The Line And Branch Off To Another

Speciality. He Also Submitted That These Are All Colleges Run By The Government And It Is Open To The Government To Prescribe Norms

For Selection And Other Avenues Are Not Closed And Clause-23 Will Override Other Clauses. He Also Submitted That Some Of The

Candidates Have Filed Writ Petitions After The Counselling Is Over And Those Candidates Have Approached The Court Belatedly, The Writ

Petitions Filed By Them Should Be Dismissed On The Ground Of Laches. In Support Of His Submissions, Learned Special Government Pleader

Relied On The Following Decisions:

R. Chitralekha and Another Vs. State of Mysore and Others,

D.N. Chanchala Ors. Vs. The State of Mysore and Others,

THE DIRECTOR OF MEDICAL EDUCATION & OTHERS v. Dr. V. RAMALAKSHMI 1999 WRIT L.R. 481

State of Himachal Pradesh and Another Vs. Padam Devi and Others,

Dr. V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS 2003 WRIT L.R. 79

Mr. R. Krishnamoorthy, Learned Senior Counsel, In His Reply, Submitted That The Assumption Of The Government That The Acquisition Of

Postgraduate Diploma Would Become Waste If The Candidate Goes To Other Branch For His Degree As The Knowledge Acquired In One

Field Would Not Become Waste. He Submitted That The Subjects Of Study Are Not Totally Unrelated And What Is A Qualification Has

Become A Disqualification Now. He Therefore Submitted That Clause-23 Is Violative Of Article 14 Of The Constitution Of India. Mr. V.K.

Muthusamy And Mr. K.M. Vijayan, Learned Senior Counsel Also Supported The Arguments Advanced By Mr. R. Krishnamoorthy, Learned

Senior Counsel.

I Have Considered The Submissions Of Mr. R. Krishnamoorthy, Mr. V.K. Muthusamy And Mr. K.M. Vijayan, Learned Senior Counsel And

Also Mr. Raja And Mr. Sundar, Learned Counsel Appearing For The Petitioners And Mr. Rajasekaran, Learned Special Government Pleader

(Education) Appearing For The Respondents. I Am Of The View, Clause-21 And Clause-23 Are Both Permissive As Well As Regulatory. They

Are Permissive In The Sense That They Permit Candidates Who Have Already Completed And Acquired Postgraduate Diploma Course In

Anyone Of The Disciplines To Apply For Postgraduate Degree Course In The Same Discipline And It Is Regulatory In The Sense That It

Prevents A Person From Applying To Some Other Discipline For Postgraduate Degree Other Than The Discipline In Which He Has Acquired

Postgraduate Diploma. Clause-23 Is Also Conscious Of The Fact That There Are Limited Number Of Seats Available In Postgraduate Degree

Courses And There Are Large Number Of Aspirants And The Preference Should Be Given To A Candidate Who Has Secured Postgraduate

Diploma To Pursue Further Study In The Same Direction. Clause-23 Is Also Blind To The Ground Realities Of The Situation That There Are

Only Few Seats Available In The Postgraduate Degree Courses And The First Option Of The Candidate Will Be To Seek Postgraduate Degree

In The Same Discipline In Which He Has Postgraduate Diploma And Only If The Seat In That Diploma Is Not Available, He Will Opt For

Another Postgraduate Degree Course Which Will Be Closely Related To The Subject In Which He Had Postgraduate Diploma And Also To The

Fact That Postgraduate Degree Courses Are More In Number Than The Postgraduate Diploma Courses.

There Is No Difficulty In Accepting The Submission Of Mr. V.K. Muthusamy, Learned Senior Counsel That All The Clauses In The

Prospectus Should Be Read In A Harmonious Manner And If Clause-21 Or Clause-23 Is Read In The Manner Indicated Above, The Clause

Will Be Consistent With Clauses-13, 15, 16 And 28 Of The Prospectus. I Am Of The View, Since The Clause-23 Also Permits A Candidate To

Apply For Postgraduate Degree In The Same Discipline In Which He Has Secured Postgraduate Diploma, The Clause-16(A) Providing That The

Diploma Is Not A Necessary Qualification To Apply For Postgraduate Degree Course Will Not Be In Any Way Inconsistent With Clause-23.

Similarly, Clause-16(B) Which Provides That The Duration Of Postgraduate Degree Course For The Diploma Candidates Who Have Undergone

Two Year Courses Shall Be Two Years In The Same Speciality And Three Years In Other Specialties Will Also Not Be Inconsistent As The

Candidates Who Have Acquired Diploma In One Discipline Would Be Required To Undergo Postgraduate Degree Course Only For A Period

Of Two Years In The Same Discipline. As Far As The Fixation Of Duration Of Three Years In Respect Of Other Speciality Is Concerned, It

Must Be Held That There Is Some Inconsistency Between Clause-16(B) And Clause-23. Similarly, Clause-28 Enabling Candidates To Choose

Any Discipline Available At The Time Of Counselling Would Mean That A Candidate Who Has Undertaken Postgraduate Diploma Course May

Choose Postgraduate Degree Course In The Same Discipline And There Would Be Some Inconsistency Between Clause-23 And Clause-28.

The Candidates Who Have Acquired Diploma In One Discipline Has Not Challenged Clause-23 Prohibiting Them To Apply For Any Other

Postgraduate Diploma Course In Another Discipline. The Petitioners Who Have Challenged Clauses 21 And 23 Are Persons Who Have

Acquired Postgraduate Diploma In One Discipline Seeking Admission For Postgraduate Degree Course In Another Discipline And Not In

Postgraduate Diploma Course. Hence, It Is Not Necessary To Consider The Validity Of Clause-23 With Reference To Candidates Who Have

Acquired Postgraduate Diploma In One Discipline Seeking Admission In Postgraduate Diploma In Another Discipline.

There Is No Difficulty In Accepting The Submission Of The Learned Special Government Pleader (Education) That The State Which Bears

The Financial Burden For Running The Government Colleges Is Entitled To Lay Down Criteria For Admission In The Colleges Run By The State

And The State Has The Power To Decide The Source From Which The Admission Could Be Made And The Clause Providing Some Restriction

Is Not Arbitrary And Not Unreasonable Which Has The Nexus With The Object Of The Rules. The Decision Of The Supreme Court In D.N.

Chanchala Ors. Vs. The State of Mysore and Others, And The Decision Of This Court In Dr. V.GEETHA v. THE STATE OF TAMIL NADU

& OTHERS 2003 WRIT L.R. 79 Support The Case Of The Respondents To This Extent. Equally, In SUGANTHI v. STATE OF TAMIL

NADU AND ANOTHER 1984 WRIT L.R. 249 , A Division Bench Of This Court Considered The Validity Of Clause 7(1) Of The Prospectus

Which Denied A Candidate To Apply For Admission To M.B.B.S. Course, If He Had Already Got Admission In Other Course Such As

Engineering, Agriculture, Veterinary BDS, B.Pharm, Etc., And The Division Bench Of This Court, Following The Decision Of The Supreme Court

In R. Chitralekha and Another Vs. State of Mysore and Others, Held As Under:-

Selection Of Best Candidates For Admission To Available Seats In Different Category In Professional Colleges With An Eye To Restrict The

Number On Some Reasonable Basis Since The Colleges Cannot Hold Beyond A Particular Number Of Students, Is A Power Given To The

Authorities After Evolving Certain Policies For The Selection. One Such Policy In Present Case Is To Deny Admission To Those Students Who

Have Already Got Into The Professional Colleges Mentioned In Clause 7(1) Of The Prospectus And Had Undergone Six Months Course (First

Semester). Such A Policy, In Our Opinion, Is Reasonable And Has A Nexus To The Object Sought To Be Achieved, Viz., Manning All The

Colleges Run By The Government Efficiently And In Distributing The Seats Available Equitably. If A Candidate Studying In An Engineering

College, Which Course Also Got Only A Limited Number Of Seats And For Which Also There Is Competition, And After Writing The First

Semester, Is Allowed To Compete For A Seat In The Medical College, It Will Definitely Deprive The Candidates Who Have Come In For The

First Time For Selection To The Medical Course. A Candidate Who Has Already Secured A Seat In A Professional College Stands On A

Different Category And That Candidate''s Chances Of Becoming A Graduate In That Professional College Is A Fait Accompli. Considering The

Limited Number Of Seats In Various Professional Colleges, The Government Thought It Fit To Lay Down A Policy As Mentioned In Clause 7(1)

Of The Prospectus. Further, If A Candidate Who Has Got A Seat In The Engineering College Deserts It, For The Admission Which He Gets In

Another Professional College Such As Medical College, The Seat In That Particular Engineering College Will Go As A Waste. The Wisdom Of

The Government Thought It Necessary To Bring In Such A Policy, Which Has A Nexus In Our Opinion For The Object To Be Achieved. By

This Policy There Will Be Equitable Distribution Of Limited Seats Available In All The Professional Colleges Manned By The State After

Determining The Merit Of The Candidates Eligible To Appear For Such A Selection.

There Can Be No Difficulty In Holding That The Government Which Runs Professional Colleges Has The Power To Frame A Scheme And It

Has The Power To Restrict Admission On Reasonable Terms And Regulate The Admission And Distribute The Seats Equitably To Those Who

Seek Admission. The Decision Of The Division Bench Of This Court In THE DIRECTOR OF MEDICAL EDUCATION & OTHERS v. Dr. v.

RAMALAKSHMI 1999 WRIT L.R.481 Also Supports The Case Of The Respondents As This Court Has Held That The Decision Of The

Government Partakes A Decision Of Policy Depending Upon Exigencies Of Situation And Having Regard To The Limited Number Of Seats

Available And The Financial Commitment Involved For The State, It Is Open To The Government To Regulate Admission Of Candidates To The

Courses In Higher Studies.

The Decision Of The Supreme Court In STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC) Also Recognises That It Is

Open To The State To Regulate Admission Provided The Regulation Made Is Not Arbitrary Or Unreasonable. I Am Unable To Accept The

Submission Of Mr. K.M. Vijayan, Learned Senior Counsel That After The Medical Council Of India Post Graduate Medical Education

Regulations, 2000 Came Into Force, The State Government Has No Power To Prescribe Any Condition For Admission. There Can Be No

Doubt That The Regulations Framed By The Medical Council Of India Should Be Complied With, But, At The Same Time, The Supreme Court

In Number Of Cases Has Upheld The Power Of The State Government To Identify The Source Of Admission For The Candidates Seeking

Admission To The Postgraduate Medical Courses And The Decision Of The Supreme Court In STATE OF MP v. GOPAL D. TIRTHANI

(2003) 9 ILD 13 (SC) Is Relevant As The Supreme Court Has Taken Note Of The Medical Council Of India Post Graduate Medical Regulations

And Upheld The Quota Of Seats Fixed For Inservice Candidates In Medical Postgraduate Admission In The State Of Madhya Pradesh. In Other

Words, The Source Of The Power Of The State Government Can Be Traced To The Decision Of The Supreme Court, Cited Supra. I Am Of

The View, While The State Government Should Comply With The Medical Council Of India Postgraduate Medical Regulations, It Can Also

Frame Its Own Regulations For Admission To Postgraduate Medical Courses Which Are Not In Any Way Inconsistent With The Medical

Council Of India Postgraduate Medical Regulations Provided The Regulation Has A Reasonable Nexus To The Object Of The Rules. Therefore

The Submission Of Mr. K.M. Vijayan, Learned Senior Counsel That Clause-23 Is Violative Of The Provisions Of Medical Council Of India

Postgraduate Medical Regulations And Hence, It Should Be Struck Down Is Not Acceptable, As, In My View, Clause-23 Is In No Way Conflict

With The Medical Council Of India Postgraduate Medical Regulations.

The Next Question That Arises Is Whether Clause-21 Or Clause-23 Is Violative Of Article 14 Of The Constitution Of India. It Is Well

Settled By Several Decisions Of The Supreme Court That To Withstand The Test Of Reasonable Classification Within The Meaning Of Article 14

Of The Constitution Of India, The Classification Must Satisfy The Twin Test, Namely, (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. In A.I.I.M.S. Students Union Vs. A.I.I.M.S. and Others, Mr. R.C.Lahoti, J.

Speaking For The Bench Held That The Merit Must Be Test When Choosing The Best. The Rule Of Equal Chance For Equal Marks Is Another

Basic Rule. Similarly, Equality Of Opportunity For Every Person In The Country Is A Constitutional Guarantee. A Candidate Who Gets More

Marks Than Another Is Entitled To Preference For Admission And This Proposition Has Greater Importance For The Higher Levels Of

Education Like Postgraduate Courses And The Higher The Level Of The Speciality, The Lesser The Role Of Reservation.

It Is Equally True That The Supreme Court In State of Himachal Pradesh and Another Vs. Padam Devi and Others, Has Held That The

Classification Between The Candidates Must Be Distinct And Clearly Defined As Regards The Eligibility Criteria Of Candidates, The Choice Of

Candidates, The Training And Post-Training Assistance And Most Importantly, The Objectives Of The Training. It Is No Doubt True That The

Supreme Court In Ashutosh Gupta Vs. State of Rajasthan and Others, Has Held That The Concept Of Equality Before Law Does Not Involve

The Idea Of Absolute Equality Amongst All Which May Be A Physical Impossibility And All That Article 14 Guarantees Is The Similarity Of

Treatment And Not Identical Treatment And The Protection Of Equal Laws Does Not Mean That All Laws Must Be Uniform And Equality

Before The Law Means That Among Equals The Law Should Be Equal And The Law Should Be Equally Administered And That The Likes

Should Be Treated Alike And Equality Before The Law Does Not Mean That Things Which Are Different Shall Be Treated As Though They

Were The Same And A Legislature Which Has To Deal With Diverse Problems Arising Out Of An Infinite Variety Of Human Relations Must Of

Necessity, Have The Power Of Making Special Laws To Attain Particular Objects And For That Purpose It Must Have Wider Powers Of

Selection Or Classification Of Persons And Things Upon Which Such Laws Are To Operate And Mere Differentiation Or Inequality Of

Treatment Does Not ""Per Se"" Amount To Discrimination Within The Inhibition Of The Equal Protection Clause And The State Has Always The

Power To Make Classification On A Basis Of Rational Distinctions Relevant To The Particular Subject To Be Dealt With.

As Far As The Decision Of This Court In Dr. V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS 2003 WRIT L.R. 79 Is

Concerned, The Decision, In My Opinion, Has No Application As In That Case The Petitioner Had Already Acquired The Qualification Of P.G.

Degree, Namely, M.S. (General Surgery) And By Virtue Of The Relevant Clauses Of The Prospectus She Was Made Ineligible To Apply For

And To Join Another P.G. Degree Or Diploma Course. In That Situation, This Court Held That It Is Not Open To The Petitioner To Put Forward

The Plea Of Discrimination As The Petitioner Is Not Identically Placed Or On Par With Any Other Candidate With A Qualification Of Bachelor

Of Medicine And Surgery. This Court Also Held That Having Acquired A P.G. Degree Qualification, The Petitioner Seeks To Acquire Another

P.G. Degree In Another Speciality And It Would Result In Undue Advantage Being Conferred On The Petitioner While Depriving A Valuable

Opportunity To Other Graduates In Medicine. This Decision, In My Opinion, Has No Application At All As The Petitioner In That Case Had

Already Acquired Postgraduate Degree In One Discipline And If She Was Allowed To Acquire Another Postgraduate Degree In Some Other

Speciality, Then, It Would Deprive The Chances Of Another Candidate With No Postgraduate Degree Qualification To Acquire A P.G. Degree

And In That Context, This Court Held That There Is No Violation Of Article 14 Of The Constitution Of India. I Am Of The View That It Is Not

Permissible To Equate A Person Who Has Already Acquired A Postgraduate Degree With A Person Who Has Not Acquired A Postgraduate

Degree Or A Person Who Has Secured Only A Postgraduate Diploma, And It Is Well Settled That A Degree And A Diploma In A Particular

Discipline Do Not Stand On The Same Footing As There Are Essential Differences Between The Acquisition Of A Degree And The Acquisition

Of A Diploma In A Particular Discipline And The Candidate With A Postgraduate Diploma Is Required To Undergo Two More Or Three More

Years Of Intensive Study, As The Case May Be, To Acquire The P.G. Degree And Become A Specialist In That Particular Discipline.

As Far As The Decision Of This Court In THE DIRECTOR OF MEDICAL EDUCATION, & OTHERS v. Dr. V.RAMALAKSHMI 1999

WRIT LR.481 Is Concerned, The Decision Also Has No Application As The Clause Dealt With By The Division Bench Was One Relating To

Service Candidates And If Any Disciplinary Proceeding Was Pending Against Them, The Clause Prohibited The Service Candidates From

Sending In Application. This Court, While Upholding The Clause On The Ground That It Is Not Violative Of Article 14 Of The Constitution Of

India, Held That It Is Open To The Government To Regulate Admission Of Candidates Who Were Already In Service To Such Courses In

Higher Studies, Of Only Those Who Have No Cloud Around Them And Who Have No Mixed Or Adverse Record Of Service.

As Far As The Counter Affidavit Filed By The Respondents Is Concerned, There Are 23 Courses In Postgraduate Degree And 17 Courses

In Postgraduate Diploma Available And The Total Number Of Seats In Postgraduate Degree Are 416 And Postgraduate Diploma Are 476.

Though

There Are 23 Courses In Postgraduate Degree, There Are Only 12 Specialities For Which Postgraduate Diploma Courses Are Available

Preceding The Degree Courses. In The Counter Affidavit It Is Also Stated That There Are 300 Government Hospitals Situate In 28 Districts Of

Tamil Nadu In Which Various Speciality Departments Are Available. It Is Also Stated That The Policy Of The Government Is To Appoint

Medical Officers With Minimum Postgraduate Diploma Qualification In The Hospitals So That The People From The Rural Areas Need Not

Have To Travel To The Referral Hospitals Attached With Medical Colleges.

The Policy Of The Government Seems To Be That If A Candidate With DCH Qualification Which Is A Postgraduate Diploma In Child Health

Subsequently Takes Postgraduate Degree Course In E.N.T. Which Is Entirely A Different Speciality, His Training In The Previous Speciality Will

Not Be Ulitlised Either For The Public Or For The Government. The Stand Of The Government Shows That It Equates A Postgraduate Degree

Course With A Postgraduate Diploma Course And An Additional Qualification By Way Of A Diploma Is Treated As A Disqualification For

Pursuing Higher Degree Course. As Already Seen, There Are Only 12 Specialities In The Postgraduate Diploma Course For Which There Are

Corresponding Specialities In Postgraduate Degree Course. It Is Also Possible To Visualise The Case Of A Person Who Has Obtained A

Postgraduate Diploma In Child Health, Viz., DCH And If He Is Unable To Get A Seat In M.D. Pediatrics Due To Limited Number Of Seats

Available In That Particular Faculty And If He Pursues His Studies By Choosing M.D. (General Medicine), It Cannot Be Stated That The

Knowledge Acquired By Him By Way Of Diploma In Child Health Would Become Useless And Irrelevant, When He Practises As M.D.

(General Medicine), Particularly In The Case Of Medical Field. It Cannot Also Be Stated That The Diploma In Child Health Is Totally Unrelated

To The M.D. (General Medicine) And With The Higher Qualification In M.D. (General Medicine) As Well As The Qualification Of Diploma In

Child Health, He May Be Able To Attend More Efficiently The Patients In The Rural Areas Both In The Case Of Child Health And In General

Medicine. The Disqualification Or The Restriction In Clause-21 Or Clause-23 Of The Prospectus Not To Permit A Candidate From Applying To

Any Other Speciality Is Also Not Consonance With Clause-16(B) Or Clause-28 Of The Prospectus. By Virtue Of The Operation Of Restriction

Found In Clause-23, The Right Of Candidates To Choose Any Of The Disciplines Available At The Time Of Counselling Is Lost And At The

Time Of Counselling, If A Candidate Has Acquired A Postgraduate Diploma In Child Health, He Would Not Normally Opt For M.D. (General

Medicine) And If He Opts For The Same, Then, The Duration Of The Postgraduate Degree Course Would Be Three YeaRs. Therefore The First

Option In Such Cases Would Be To Opt For M.D. (Pediatrics) And If The Seats Are Not Available In That Discipline, The Candidate May

Choose Any Other Discipline. Hence, Clause-23 Is Against The Provisions Of Clause 16(B) Or Clause-28 And Clause-23 Takes Away The

Right Of A Candidate To Choose Any Of The Subjects When He Seeks To Pursue A Different Speciality. Therefore, The Submissions Of Mr. R.

Krishnamoorthy, Mr. V.K. Muthusamy And Mr. K.M. Vijayan, Learned Senior Counsel Are Well-Founded In This Respect That All The

Clauses Should Be Read Harmoniously And They Should Not Be Read In Such A Manner That One Clause Is Violative Of Another Clause.

It Is Well Settled That The Government Has The Power To Regulate In The Matter Of Admission Of Candidates, It Does Not Mean That

The Regulation Of Admission Of Candidates Should Be Unreasonable And There Must Be Nexus Between The Clause In Question And The

Object Of The Rules. It Is Evident That All The Candidates Are Treated Equally At The Time Of Common Entrance Examination, But, At The

Time Of Selection, They Are Not Treated Alike. The Candidates Coming Under Clause-23 Are Denied Admission Not On The Ground Of Any

Merit, But Only On The Ground That They Have Secured Postgraduate Diploma In Some Other Discipline. The Effect Of Clause-23 Is That A

Person With Lesser Merit Is Preferred, But A Candidate With Higher Merit Is Denied Admission On The Score That He Has Secured A

Postgraduate Diploma In Some Other Faculty. In Other Words, By Operation Of Clause-23 Of The Prospectus, There Will Be A Serious Dent

To The Merit Based Selection, Particularly In Postgraduate Degree Level.

The Andhra Pradesh High Court In Shamsuder Rao Vs. State of Andhra Pradesh and Others, Has Held That It Is Preposterous To Deny

Admission To A Candidate Who By Virtue Of His Merit Is Entitled To Admission To M.S. (General Surgery) On The Mere Ground That He

Had Earlier Qualified For Admitted To The Postgraduate Diploma In Child Health To Which He Was Admission And Registered Only Because

He Could Not Earlier Qualify For M.S. (General Surgery). The Court Has Also Held That The Rule Making Authority Did Not Intend The

Applicants Who Had Not Already Secured The Postgraduate Diploma Or Degree To Be Denied Admission In A Particular Subject Merely

Because He Had Registered Himself In A Particular Subject For The Postgraduate Diploma Course. It Is Also Relevant To Notice Here That

Madhava Reddy, Ag.C.J., Speaking For The Bench Held That Any Training A Candidate May Have Undergone Would Not Go Waste If He Is

Admitted To M.S. (General Surgery). The Basis Behind The Introduction Of Clause-23 Is That Since The Candidate Had Undergone A

Postgraduate Diploma Course In One Faculty And If He Is Allowed To Undertake Postgraduate Degree Course In Another Faculty, The

Knowledge Acquired By Him In The Diploma Course Would Become Waste. In My View, There Is No Basis For The Said Assumption And It

Also Has No Relevance When The Candidate Is Selected On The Basis Of Merit And Merit Alone.

The Punjab And Haryana High Court Also Considered A Similar Question In Tejinder Singh Sidhu Vs. State of Punjab and others, Where A

Division Bench Of The Punjab And Haryana High Court Considered The Validity Of The Clause Contained In The Prospectus Which Provided

That Doctors Who Have Had Postgraduate Qualifications Whether Degree Or Diploma Should Be Selected Only For Their Respective Speciality

In Which They Have Done Degree Or Diploma, And Held That It Is Violative Of Article 14 Of The Constitution Of India And It Is Void As The

Securing Of A Higher Qualification Had The Effect Of Making A Candidate Ineligible Whereas In Fact, It Ought To Have Been Considered As A

Merit. The Punjab And Haryana High Court Followed An Earlier Judgment Of A Bench Of That Court Reported In State Of Punjab v. Dr.

Harnek Singh Medical Officer 1989 (3) SLR 802 Wherein It Was Observed As Under:-

A Person With Higher Qualifications In The Speciality Other Than The One In Which He Is Seeking Appointment Is Ineligible Whereas The

Other Members Of The Service Having Lower Qualifications Are Still Eligible For Appointment. It Is An Unreasonable Discrimination. The

Members Of The Service Having Higher Qualifications Have Been Placed At An Disadvantageous Position Qua The Other Members Having

Lower Qualifications. The Condition Is Violative Of Art. 14 Of The Constitution.

I Have Already Referred To The Unreported Decision Of Mr. S.S. Subramani, J. In W.P. No. 1741 Of 1997, Etc. Batch, Dated 9.9.1997

Where The Learned Judge Considered The Decision Of The Supreme Court In Dr Dinesh Kumar and Others Vs. Motilal Nehru Medical College,

Allahabad and Others, Where A Direction Was Given By The Supreme Court To Evolve A Common Pattern For Admission To Postgraduate

Medical Courses. Learned Judge Also Noticed The Decisions Of Andhra Pradesh High Court And Punjab And Haryana High Court, Cited

Supra, And Held That So Far As Basic Qualification For Eligibility For Admission To Postgraduate Medical Courses Are Concerned, The

Respondents Should Not Have Treated The Petitioners Separately And The Principle Underlying Article 14 Of The Constitution Prohibits The

Same. Learned Judge Accepted The Arguments That M.B.B.S. Is The Basic Qualification For Eligibility For Admission To The Postgraduate

Medical Courses And Basic Qualification Alone Should Be Considered And Merely Because The Candidates Have Obtained A Diploma In

Some Discipline, That Should Not Be Taken As A Disqualification. I Am Of The View That The Judgment Of Mr. S.S. Subramani, J. Would

Equally Apply In Considering The Validity Of Clause-23 Of The Prospectus In Question.

Though The Unreported Decision Of Mr. S.S. Subramani, J. In W.P. No. 1741 Of 1997, Etc. Batch Was Sought To Be Distinguished On

The Ground That The Clause Considered By The Learned Judge Is Different, I Find That The Ratio Laid Down By The Learned Judge Is That

For Admission To Postgraduate Degree Course, The Basic Qualification Should Be Considered And Acquisition Of Diploma In Some Other

Discipline Is Not To Be Regarded As A Disqualification.

There Is Also An Additional Reason. Clause-59 Of The Prospectus Provides That Out Of The Seats Sanctioned For Postgraduate

Diploma/Degree And M.D.S. Courses, 25% Of Seats Are Reserved For Allotment To All India Candidates On The Basis Of All India Selection.

In So Far As The Candidates Selected Under All India Selection Are Concerned, There Is No Prohibition And It Is Open To Those Candidates

To Pursue Any Discipline, Though They Might Have Secured Postgraduate Diploma In Another Discipline. Though The Source Of Admission

May Be Different, I Am Of The View That The Prohibition Against Admission To Postgraduate Degree Course In Some Other Discipline For The

Same Candidate Is Violative Of Article 14 Of The Constitution Of India. As Already Observed By Me, The Merit Is Sacrificed By Way Of The

Restriction Found In Clause-23 And The Restriction Goes Against The Object Of The Rule And It Has No Nexus Or Link With The Object Of

The Rule Providing For Merit Based Selection. The Submission Of Learned Special Government Pleader (Education) That The Petitioners Have

Not Given The Details Of Discrimination Is Unsustainable As Senior Counsel Appearing For The Petitioners Have Clearly Demonstrated Before

The Court The Unequal Treatment That Would Be Meted Out To The Petitioners By The Operation Of Clause-23 And How The Merit Will Be

A Casualty By The Process Of Selection Adopted By Virtue Of Clause-23 Of The Prospectus.

As Far As The Decision Of A Full Bench Of This Court In Dr. R. Murali Vs. Dr. R. Kamalakkannan and three others, Relied Upon By The

Learned Special Government Pleader Is Concerned, The Decision Has Hardly Any Application. The Bench Noticed The Decision In Dr Preeti

Srivastava and Another Vs. State of M.P. and Others, Where The Supreme Court Also Held That In Super Speciality Cases Merit Alone Is To

Be Considered. It Was Also Found By The Bench Of This Court That From The Merit List In Both Service And Non-Service Candidates, The

Merit Was Not The Casualty And Only On The Basis Of Merit, The Classification Was Made. However, In The Present Case, The Merit Is The

Casualty As A Person In Lower Rank In The Competitive Examination Will Bypass A Candidate Who Has Secured Higher Mark In The Same

Examination.

Learned Special Government Pleader Also Submitted That In Some Cases, The Petitioners Have Approached The Court After The

Counselling Is Over And Therefore, They Are Not Eligible And Their Case Should Be Considered On A Different Footing And Their Petitions

Should Be Dismissed On The Ground Of Laches. I Find That Mr. S.S. Subramani, J. In The Unreported Decision In W.P. No. 1741 Of 1997,

Etc. Batch, Has Also Considered The Question Of Acquiescence In A Detailed Manner And Held That Where There Is Violation Of Article 14

Of The Constitution, The Question Of Acquiescence Does Not Arise. It Is Relevant To Notice That In The Case Before Mr. S.S. Subramani, J.,

Some Of The Candidates Approached The Court After The Counselling Was Over And The Learned Judge Held That The Mere Fact That The

Petitioners Did Not Participate In The Counselling Would Not Debar Them From Approaching The Court As There Was Misinterpretation Given

By The Respondents Which Was Challenged In The Writ Petitions. I Respectfully Follow The Decision Of Mr. S.S. Subramani, J. And Hold That

Where There Is A Question Of Violation Of Article 14 Of The Constitution Of India, There Cannot Be Any Question Of Estoppel Or Waiver In

Such Cases. Moreover, I Find That The Persons Who Have Come To The Court Are Wait-List Candidates And Out Of The Petitioners, Four

Are Entitled For Admission And Other Petitioners Are Still In The Wait-List.

I Therefore Hold That Clause-21 Or 23 Which Prohibits A Candidate Who Has Already Completed Or Acquired A Postgraduate Diploma

In One Discipline From Applying For A Postgraduate Degree Course In Another Discipline Is Violative Of Article 14 Of The Constitution Of

India, And The Result Is That All The Writ Petitions Stand Allowed To The Above Extent. No Costs. Connected Wpmps. Are Closed. The

Impleading Petition Is Ordered.