Bombay High Court
Dr. Vaishali Dilip Pawar And Others vs The Director Of Medical Education And ... on 5 July, 2012
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, R.D.Dhanuka
PNP 1/4 WP5214-5.7.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5214 OF 2012
Dr. Vaishali Dilip Pawar and others ..Petitioners.
versus
The Director of Medical Education and Research,
(CET Cell) and others ..Respondents.
.....
Mr. Anil Anturkar with Mr. Sugandh B. Deshmukh for the Petitioners.
Mr. V.S. Gokhale, AGP for the Respondents.
......
CORAM : DR.D.Y.CHANDRACHUD, and
R.D.DHANUKA, JJ.
ig 5 July 2012.
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
Rule, made returnable forthwith. Learned AGP for the Respondents waives service. By consent, the Petition is taken up for hearing and final disposal.
2. The Petitioners are all employed with the Government of Maharashtra and are Medical Officers working in Government Hospitals. The dispute in the present case relates to the in-service quota for postgraduate degree and diploma courses. The Petitioners have sought a direction to the effect that the Respondents should declare 25% of the total number of postgraduate medical seats inclusive of degree and diploma seats as being available for in service candidates without excluding (i) seats reserved for all India medical students; (ii) seats for clinical subjects.
3. The State Government issued a Government Resolution on 22 February 1996 which adverts to the position that students who have completed their medical courses show an unwillingness to join government service. In view of this and in order to provide an incentive to candidates to join government service, the government had considered a proposal for increasing the extent of the reservation provided for in service candidates under a Government Resolution dated 24 October 1991. Consequently, it has been decided that the ::: Downloaded on - 09/06/2013 18:44:22 ::: PNP 2/4 WP5214-5.7.sxw reservation of in service candidates should be increased from 15% to 25%.
4. In order to understand the grievance of the Petitioners, it would be necessary to advert briefly to the factual position. In the State of Maharashtra, medical colleges fall into three categories : (i) Government Medical Colleges; (ii) Medical Colleges conducted by the Municipal Corporations; and (iii) Medical Colleges of private institutions including deemed universities. The in service quota to which the present proceedings relate is the quota that is available for candidates in the service of the Government of Maharashtra and are desirous of pursuing postgraduate degree or diploma courses. There is a similar quota for municipal employees in colleges conducted by Municipal Corporation(s) with which the present proceeding is not concerned. Of the total number of postgraduate seats, 50% are allocated to the All India quota. For the balance of the available seats, a Common Entrance Test is conducted. A separate merit list is prepared for in service candidates who are also required to appear for the CET. There are 23 subjects in which postgraduate degree courses are available in the State, but insofar as the Government Medical Colleges are concerned, only 21 subjects are available. These subjects fall into two categories viz. (i) clinical subjects involving contact between the patient and the doctor such as medicine, surgery, pediatrics and gynaecology. There are 13 such subjects; (ii) Non-clinical subjects. The State Government has taken the position that for in service candidates, the 13 clinical subjects are of relevance because in service candidates are obliged to continue in government service after passing their postgraduate examinations. Consequently the reservation of 25% for in service candidates is applied after excluding seats allocated to the all India quota and non-clinical postgraduate seats. Presently a total of 237 seats in government colleges were available for degree courses in clinical subjects, of which 59 have been allotted to in service candidates. For diploma courses, of the total number of 96 seats, 24 are available for in service candidates.
5. The submission of the Petitioners is that the rationale for the Government Resolution dated 22 February 1996 and as noted in the earlier Government Resolution dated 24 October 1991, is the need to provide an incentive for candidates to enter government service after completing their M.B.B.S. Since ::: Downloaded on - 09/06/2013 18:44:22 ::: PNP 3/4 WP5214-5.7.sxw medical graduates are unwilling to do so, government service was sought to be incentivised by setting apart a certain proportion of seats for in service candidates to pursue their postgraduate studies either for a degree or diploma. Hence, it has been submitted that bearing in mind the aforesaid justification, there is no reason to exclude 50% seats of the all India quota and seats in non-clinical subjects, while working out the reservation for in service candidates. As noted earlier, the reservation for in service candidates was increased to 25% by a Government Resolution dated 22 February 1996.
6. The Government Resolution dated 22 February 1996 does not specify the manner in which the reservation for in service candidates is to be worked out.
Unfortunately neither the Petitioners nor the learned AGP could produce the earlier Government Resolution dated 24 October 1991. The AGP informed the Court that despite all diligent efforts, the earlier Government Resolution is not available. In that view of the matter, the question that can be considered by the Court is as to whether the modality which has been followed by the State Government as explained above is so patently arbitrary as to warrant the interference of this Court on the ground that there is a violation of the fundamental right under Article 14. The object of an in service quota is to provide an incentive for government service. The in service quota is made available to candidates who are in government service, to pursue postgraduate degree or diploma courses. It cannot be held that the underlying rationale for excluding the seats which are set apart for the All India quota and the seats in non-clinical subjects is violative of Article 14. The State Government has no control over the allotment of seats under the All India quota. If the government has taken a policy decision to the effect that since in service candidates are required to attend to patients, consequently, the reservation should be allocated to clinical seats, it would be difficult for the Court to set aside such a policy on the ground of an infringement of Article 14. In the absence of a governmental policy providing for the reservation of seats for them, in service candidates could not have asserted a legal or constitutional right to a quota as in service candidates. The right originates in governmental policy. Hence, while framing the policy, government is entitled to frame the terms of entitlement, though in a fair and non-discriminatory manner. An incentive is an encouragement and in ::: Downloaded on - 09/06/2013 18:44:22 ::: PNP 4/4 WP5214-5.7.sxw conferring an incentive, government can lay down conditions to govern it. Reservation for in service candidates affect also the open seats which are available to meritorious students. The government has to draw the balance bearing in mind relevant considerations, including the fact that in service candidates as employees of government hospitals foster the public health requirement of the community.
7. However, we find that there is a lack of clarity on the part of the government in the sense that it would have been appropriate for the government to come out with a comprehensive Government Resolution setting out the basis on which the reservation of 25% for in service candidates should be worked out.
Since that has not been done, candidates are left in a state of uncertainty of the manner in which the reservation for in service candidates would be implemented. This is an unsatisfactory state of affairs. As we have noted earlier, even this Court was considerably handicapped without the Government Resolution dated 24 October 1991 being placed before it. Though the hearing of the Petition was adjourned on more than one occasion, that Government Resolution was not forthcoming. The Court has now been informed that admissions for postgraduate degree and diploma courses had been completed and there are no vacant seats for in service candidates.
8. In this view of the matter, we consider it appropriate to direct that in order to obviate the situation that has occurred for the present year, the State Government shall come out with a Government Resolution specifying the manner in which the reservation for in service candidates shall be worked out from the next academic year. We would expect that this exercise should be completed expeditiously and well in time, so that in service candidates for whom the reservation is intended to act as an incentive, are not left in a state of uncertainty. The Petition is accordingly disposed of.
There shall be no order as to costs.
(Dr. D.Y. Chandrachud, J.) (R.D.Dhanuka, J.) ::: Downloaded on - 09/06/2013 18:44:22 :::