Madhya Pradesh High Court
Pradeep Kumar Tiwari vs State Of M.P. And Ors. on 12 May, 2006
Author: Dipak Misra
Bench: Dipak Misra, R.S. Jha
ORDER Dipak Misra, J.
1. Keeping in view the commonality of challenge and the non-segregability of the spectrum of delineation, both the writ petitions were heard analogously and arc disposed of by this singular order.
2. The factual exposition being similar, it is not necessitous to adumbrate them separately. Filtering the unnecessary details, the requisites facts which arc to be uncurtained are that the petitioners in both the cases arc Assistant Surgeons working in the Public Health Department of the State of Madhya Pradesh or under the Employees State Insurance Scheme. In essence, the petitioners are in-service candidates. The State of Madhya Pradesh has framed a set of Rules called Madhya Pradesh Medical and Dental Post Graduate Course Entrance Examination Rules, 2006 (for brevity 'the Rules') which has to remain in force for the academic year 2006. The said Rules have been framed in exercise of powers conferred by Section 10 of the Madhya Pradesh Chikitsa Sanstha Niyantran Adhiniyam, 1973 (19 of 1973). In the year 2006, as setforth, Pre P.G. Examination took place wherein all the petitioners had participated. It is not disputed that in the Entrance Examination each of the petitioners has received less than 50% marks. Because of the said obtainment of marks the petitioners in both the cases have not been called for counselling. In this factual backdrop the constitutional validity of Rules 8(2), 8(5)(c), 19(1) and 19(2) has been raised.
3. Before we proceed to deal with the submissions of Mr. Satish Sharma, learned Senior Counsel alongwith Mr. J.K. Pillai for the petitioner in W.P. No. 6928/2006 and Mr. M.K. Verma, learned Counsel for petitioners in W.P. No. 6553/2006 it is condign to refer to the Rules. Ordinarily we would have reproduced the Rules which one under assail, but to get a proper picture frescoed, we think it seemly to reproduce Rules 8,10 and 19 in toto. They read as under:
8. Reservation.-20% seats are reserved for candidates belonging to Scheduled Tribe, 16% seats arc reserved for candidates belonging to Scheduled Caste and 14% seats are reserved for candidates belonging to Other Backward Classes other than creamy layer of Madhya Pradesh or as amended from time to time.
(1) Reservation for woman candidates shall be 30% according to merit cum option in each category.
(2) The minimum percentage of marks in Pre P.G. Entrance Examination for eligibility for admission to Post Graduate Medical and Dental Courses shall be 40% for SC/ST/OBC candidates and 50% for unreserved category candidates.
(3) The candidate claiming to be a candidate belonging to SC/ST/OBC category of Madhya Pradesh shall have to attach a certified copy of certificate issued by the Competent Authority with the application form and the original certificate has to be produced at the time of counselling.
(4) For Physically Handicapped who are bonafule residents of Madhya Pradesh belonging to ST, SC, OBC and Unreserved category three per cent (3%) seats are reserved for admission to P.G. Courses. Reservation will be horizontal and compartmentalized. According to the above reservation of the candidate are not available above seats should be filled by the related category only.
The candidate claiming admission against these seats will have to produce a certificate in the prescribed form District Medical Board and eligibility certificate from Superintendent Vocational Rehabilitation Centre for Physically Handicapped, Government of India, Ministry of Labour, Napier Town, Jabalpur. (Seats shown on Table 5).
(5) In P.G. Degree and Diploma Courses 20% of seats are reserved for In-service Medical Officers of Public Health and Family Welfare Department, demonstrators, Government Autonomous Medical Colleges of M.P. and Assistant Professor working in the Govt. Autonomous College who are not on contractual appointment (In-service candidate - Table Nos. 2 and 4). For these In-service candidates selection process and conditions for degree and diploma course will be as under:
Selection Criteria:
(a) Only those candidates, who have completed 5 years service on 1st January of year of examination as Medical Officer, in the Public Health and Family Welfare Department/demonstrator, working in Government Autonomous Colleges/Assistant Professor in Autonomous Dental College under the Government of Madhya Pradesh and who are not serving on contractual basis will be eligible for selection as In-service candidates. If a candidate was working on contractual basis in Public Health and Family Welfare Department of the State Government and has come in regular services while working on contractual basis, then experience of contract service will also be considered.
(b) Women candidates, who have served for three consecutive year in rural areas and who are not serving on contractual basis will also be eligible, even if they have not completed a total of five years of service. Relaxation for such woman candidate with less than 5 years of service will, however be subject to condition that they will be entitled for selection to Post Graduate Courses in Obstetrics and Gynaecology and Anesthesia only. If a woman candidate was working on contractual basis in Public Health and Family Welfare Department of the State Government and has come in regular services while working on contractual basis, then experience of contract service will also be considered.
(c) The Maximum age limit for the selection of In-service candidates will be 45 years on 1st January of the year of examination.
(d) The In-service candidates, who have done Post Graduation in one subject will not be.
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10. Examination and Merit List.- (1) There will be one common entrance examination for Post Graduate entrance conducted by Professional Examination Board. The In-service candidates will be selected on the basis of the same entrance examination. The candidates shall have to secure minimum qualifying marks as prescribed by Professional Examination Board. The Professional Examination Board will prepare and declare separate merit list of selected In-service candidates. Such In-service candidates, declared successful will be considered for final merit list by addition of marks calculated on the following basis.
(2) Total marks for the examination for In-service candidates shall be 200. The inter se merit of the selected In-service candidate shall be fixed up by adding marks of weightage for their services rendered in rural areas. The candidates serving in rural area will get maximum of 50 marks, allotted on the following basis:
(a) For Government service of one year duration while posted in rural a weightage of maximum 06 marks will be given. For the service in rural area, the maximum gain of marks will be 30 or 20 as per following marks for one year each. (For five years).
If the regular services are rendered in Primary Health Centre or Community Health Centre situated in rural area, then 06 marks will be given for one year and if regular services are rendered in Primary Health Centre or Community Health Centre in Nagar Panchayat Area, which has been formed under the "Municipalities Act, 1961" then 04 marks will be given for one year.
(b) For every year of regular service, 04 additional marks will be given, if the rural area comes under tribal sub plan. If such services are rendered in Primary Health Centre the candidate will get maximum 20 additional marks at the rate of 04 additional marks per year for five years and for rendering such regular services at community health centre, the candidate will get total additional 10 marks at the rate of 02 marks per year for five years.
(c) For the purpose of this rule, the period of service of candidate, while posted in rural area or Nagar Panchayat Area or Tribal Area and if he/she was on unauthorized absence from duty/any dies non period/any period of leave without pay/any period on training exceeding 3 months/attachment in urban area during the tenure of rural service will not be counted for the purpose of calculation of marks of weight-age of rural service.
(d) The final merit list of In-service candidates will be prepared by Professional Examination Board for counselling on the basis of marks obtained in entrance examination (equivalent to 200 marks) and marks secured for weightage to rural/tribal area service (equivalent to maximum of 50 marks) thus a total of 250 marks.
(e) In case of two or more candidates obtaining equal marks, the inter se merit will be decided as per procedure described in sub-rule (2) of Rule 19.
(f) The counselling of In-service candidates will be done by the Medical Education Department *** *** *** ***
19. Merit List.- (1) The merit list will consist of the number of candidates equal to the number of seats available for allotment in State quota. The waiting list will consist of all successful candidates, who have scored not less than 50% marks in Un-reserved category and 40% marks in reserved category. Separate merit and waiting list will be prepared for In-service and non-service (Open) candidates. Separate merit and waiting list shall be made of in-service candidates after adding the qualifying marks scored in common entrance test and marks allotted by department of Public Health and family welfare. Counselling shall be done as per the final merit/waiting list.
(2) Inter-se merit: In case, two or more candidates obtaining equal marks in the entrance examination, the merit will be decided as per procedure indicated below:
(a) A candidate, who scores more marks in Part "B" of the question paper will be kept in higher in merit.
(b) Candidates scoring equal marks even in Part "B" of the question paper, then candidate older in age will be placed higher in inter se merit of such candidates.
4. Questioning the validity of Rule 8(2) it is submitted by Mr. Satish Sharma, and Mr. M.K. Verma, learned Counsel for the petitioners that 50% marks that has been provided for In-service category candidate has to be understood in the context of Rule 10. It is their proponement that Rule 8(2) either has to be read down to mean that minimum percentage of marks, i.e., 50% would within its ambit and sweep takes in the marks awardable under Rule 10. Elaborating the said submission it is canvassed by them that if the candidate obtains 48% of marks in the entrance examination and gets 40% marks on the various heads of weightage his case has to be considered while preparing merit list under Rule 19 otherwise both the Rules, Rule 8(2) and Rule 19(1) and (2) would become repugnant to each other and an anomalous situation would crop up. It is contended that in-service candidates should be given relaxation as regards qualifying marks as they form a different class. It is propounded by them that as the same has not been done the rule invites the wrath of Article 14 of the Constitution of India inasmuch as non-equals have been treated at par. Mr. Sharma, learned Counsel, further submitted that though he has challenged the fixing of age of 45 years under Rule 8(5)(c), he would abandon the said challenge and, rightly so, as none of the petitioners has been disqualified on that ground because none of them has crossed 45 years of age.
5. Mr. T.S. Ruprah, learned Additional Advocate General and Mr. P.N. Dubey, learned Dy. Advocate General for the State countering the aforesaid submissions contended that the present rules have been framed on the basis of the Apex Court judgment rendered in the case of State of M.P. and Ors. v. Gopal D. Tirthani and Ors. . It is urged by them that there has to be common entrance examination and a person seeking admission in Post Graduate Course has to qualify and must obtain the minimum qualifying marks, for that is the sine qua non for consideration. Learned Counsel for the State submitted that Rule 10 is clear as noon day with regard to the procedure and the same does not offend Article 14 by any stretch of imagination. It is urged by them that an in-service candidate after obtaining minimum qualifying marks enters into competition with other in-service candidates who are given weight-age on certain conditions precedent being satisfied and to the said area/arena the other general category candidates, who are not in-service candidates, cannot claim any entry. It is further argued by them that though in-service candidates are treated as a separate class but that classification has no nexus with securing minimum qualifying marks at the entrance examination.
6. To appreciate the rivalized submissions raised at the Bar it is seemly to refer to the decision rendered in the case of Copal Tirthani (supra) and its backdrop. Two batches of writ petitions were filed before this Court. The decision in both the petitions was challenged before the Supreme Court. In Paragraphs 15 and 17 of the decision the conclusions of the High Court were reproduced by the Apex Court and thereafter in Paragraph 18 issues were crystalized. The Apex Court in Paragraph 36 summed up the conclusions as under:
36. We sum up our conclusions as under:
(1) In the State of Madhya Pradesh allocation of 20% seats in Post-Graduation in the Universities of Madhya Pradesh for in-service candidates is not a reservation; it is a separate and exclusive channel of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Such two channels of entry or two sources of admission is a valid provision.
(2) There can be only one common entrance test for determining eligibility for Post-Graduation for in-service candidates and those not in service. The requirement of minimum qualifying marks cannot be lowered or relaxed contrary to the Medical Council of India Regulations framed in this behalf.
(3) In the State of Madhya Pradesh, there are five Universities, i.e., there are Universities more than one. Regulation 9(2) (in) cannot be made use of in the State of Madhya Pradesh cither singly or in combination with Clause (i) for determining the eligibility for entrance into PG courses.
(4) It is permissible to assign a reasonable weightage to services rendered in rural/tribal areas by 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.
(5) Women candidates constitute a class by themselves and the provision of relaxed or reduced eligibility criteria by reference to continuous service rendered in rural areas for the purpose of sponsorship by the State Government in specified disciplines which have utility for serving womenfolk in village does not suffer from the vice of invidious discrimination.
7. In the ultimate eventuate in Paragraph 42. Their Lordships directed as follows:
42. The appeals are partly allowed and disposed of in terms of the following directions:
(1) The judgment of the High Court, to the extent to which conferral of benefit by grant of weightage to in-service candidates (i.e., doctors in the employment of the State Government) on the basis of their service rendered in rural/tribal areas and also to the extent to which the reduced eligibility qualification for women candidates from out of in-service candidates have been annulled, is set aside.
(2) The State Government shall frame fresh rules governing the PG Entrance Examination and PG (in-service) admissions consistent with the law laid down hereinabove. The rules shall as far as possible be one set of rules framed by the Medical Education Department and Public Health and Family Welfare Department in consultation with each other. If it is not possible to frame one set of rules then the two Departments may frame separate rules but care has to be taken to avoid any scope for confusion or inconsistency.
(3) The eligibility for sponsorship of the 36 successful in-service candidates in the Pre-PG Entrance Examination, 2003 shall be scrutinized and decided ex post facto. A fresh entrance examination for the remaining seats meant for in-service candidates shall be held at the earliest and, in any case, within a period of one month from today. Such of the candidates who participated in the Pre-PG Entrance Examination of the year 2002 and whose results have not been declared consequent upon the judgment of the High Court, would be allowed an opportunity of taking this examination relaxing the upper age-limit, if required. The candidates who are otherwise eligible for taking the PG Entrance Test, 2003 shall also be allowed to participate. Such number of candidates shall be declared passed as is equivalent to number of seats meant and available for in-service candidates adjusting the number of candidates already declared successful, i.e., 36, subject to satisfying the sponsorship criteria.
(4) A consolidated merit list of successful in-service candidates shall be prepared. Such list shall include : (i) the 36 candidates who have already been declared successful and have also satisfied the sponsorship criteria, and (ii) the candidates declared successful at the PG Entrance Test which will now be held for the remaining seats pursuant to this judgment. The consolidated list having been prepared, the order of merit shall be fixed by assigning weightagc to rural service consistently with the prevalent rules and allow participation in counselling to the extent of available seats.
(5) Counselling for the in-service candidates shall be held as per the consolidated merit list of successful in-service candidates prepared in terms of the abovesaid directions. Counselling, if any, already held for 36 in-service candidates shall be ignored and not given effect to.
(6) If the required number of in-service eligible candidates do not qualify at the Pre-PG Examination now held, the seats so left vacant shall be diverted and made available for the open category candidates.
8. In view of the aforesaid decision we are of the considered opinion that obtaining of minimum percentage of marks in the Pre. P.G. Entrance Examination as provided under the Rules is imperative. The said Rule lays a postulate that a general category and unreserved category has to obtain 50% marks and other category candidate is required to secure 40% marks. Submission of Mr. Sharma and Mr. Verma is that when a doctor goes in a rural area service, he has to undergo tremendous suffering and that is why extra marks are allotted which is in the realm of weightage. It is further urged by them with vehemence that if Rule 10 (d) is understood in proper perspective it would be clear as the bright sky that from the total marks of 250 marks one is required to get 50% and he is not to be considered alongwith others in the same stream. It is unnecessary to emphasize that the interpretation placed by the learned Counsel for the parties does not deserve acceptance and if we allow ourselves to say so, common sense, does not give consent to the same. Weightage that has been given to in-service candidates is qua another in-service candidate. The base line is the obtaining of 50% marks which is the qualifying marks in the entrance examination. Unless that puts a candidate on the ladder, the question of any kind of push does not arise. As is perceivable from Rule 10 (2), the total marks for in-service candidate is 200. The weightage marks are meant for determination of the inter se merit between the same stream/category. To give an example-if an in-service candidate has secured 60% marks and the weightage marks is 50% and another in-service candidate has secured 55% marks and gets 50% from the weightage marks he would lose to the person who has got higher marks. The aforesaid is absolutely clear, logical and in conformity with the decision rendered by the Apex Court in the case of Gopal Tirthani (supra). We really fail to perceive any anomaly in the rules inter se.
9. At this juncture, it is worthwhile to state that 50% marks has been fixed by Medical Council of India. The Apex Court in the case of Gopal Tirthani (supra) has categorically and unequivocally stated that if any relaxation is to be sought that is to be sought by the Medical Council of India. That has not been done. In view of the same we fail to fathom how the rules invite the frown of Article 14 of the Constitution. Learned Counsel for the parties have submitted that in-service candidate being a class altogether different they should have been put in a different compartment and, therefore, incorporation of the said class alongwith unreserved category for the purpose of obtaining minimum qualifying marks is totally unsound and incorrect and, therefore, Rule 10 and Rule 19(2) have to be read to mean that marks obtained in the entrance examination and the weightage marks have to be totalled to make the qualifying marks. If the aforesaid submission is accepted the rule would suffer from over inclusiveness which is not permissible. That apart such an interpretation is also in direct contradiction with the law laid down by the Apex Court in Paragraph 36 of the judgment in the case of Gopal Tirthani (supra) specifically conclusions 2, 3 and 4, wherein it has been categorically held that eligibility for admission has to be determined only on the basis of the marks obtained in the common entrance examination and the requirement of obtaining minimum qualifying marks in the common entrance examination cannot be lowered or relaxed contrary to Medical Council of India Regulations. Ergo, we reiterate that we are not impressed by the aforesaid submission and accordingly it stands repelled.
10. Before parting with the case we think it appropriate to state that we have noted the submission of Mr. Sharma with regard to prescription of age in Rule 8(5)(c). As has been indicated hereinbefore Mr. Sharma as well as Mr. Verma has fairly stated that none of the candidates have crossed maximum age limit of 45 years. Thus, in praesenti, it is an academic challenge. It is well settled in law that academic challenge of a rule is not to be dwelled upon by this Court. Hence, the said cavil is left open.
11. In view of the aforesaid the writ petitions, being sans merit, stand dismissed without any order as to costs.