Kerala High Court
Dr. Bindu Varghese vs State Of Kerala on 15 September, 2010
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14981 of 2010(W)
1. DR. BINDU VARGHESE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF MEDICAL EDUCATION,
3. THE COMMISSIONER FOR ENTRANCE
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.K.I.MAYANKUTTY MATHER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :15/09/2010
O R D E R
S.SIRI JAGAN, J.
=============================
W.P.(C).Nos. 14981, 15378, 15481, 15598,
15882, 16039, 16101, 16655, 16743, 17201
& 24829 of 2010
===============================
Dated this the 15th day of September, 2010
J U D G M E N T
In the Kerala State, the imbroglio in the field of admissions to medical courses continues unabatedly every year, without any solution in sight in the near future. Sadly, it appears as if for some reason or other, every step taken by the government in the field of admissions to medical courses only adds to the confusion every time. In these writ petitions, the scene shifts to the field of admissions to super-speciality post-graduate medical courses in Kerala, for this year. Since the issues arising in all these writ petitions are one and the same, these writ petitions have been heard together and are being disposed of by this common judgment. For convenience in preparing judgment, unless otherwise specifically indicated otherwise, the rank of parties and exhibits referred to herein below shall be as obtaining in W.P. (C) No. 16039/10.
2. The petitioners herein are aspirants for admissions to the super-speciality post- graduate medical courses in various disciplines in the merit stream, who are aggrieved by certain eligibility criteria fixed by the government in the prospectus for admissions to those w.p.c.14981/10 etc. 2 courses, except the petitioner in W.P. (C) No. 24829/10. Ext. P1 is the prospectus issued by the Government of Kerala for such admissions, this year. The challenge originally was against three sub clauses of clause no. III(a) thereof, under the main heading "Eligibility for admission" with the sub heading `Nativity'. The same reads thus:
"III. Eligibility for admission:
(a)Nativity: Applicants should have satisfied the following conditions.
(i) They should be Indian Citizens.
(ii) Has passed the PG Degree (MD/MS)/Dip.N.B from any of the Medical Colleges recognised by Medical Council of India.
(iii) Has done at least one year compulsory rural service/Senior residency/Government service in any of the Government Medical Colleges/Government Hospitals in Kerala.
(iv) In case sufficient number of candidates fulfilling the condition as per (iii) above is not available, candidates who are otherwise qualified will also be considered, based on the merit in the entrance test.
(v) Preference shall be given to the candidates, who had done MBBS or MD/MS from the Medical Colleges in Kerala, for preparation of rank list. In case sufficient number of candidates in the above category is not available for admission for any reason, candidates from other states will be considered for the balance seats, based on the merit in the entrance test."
In the writ petitions counter affidavits were filed by the Government, in paragraph 5 of which, they have submitted as follows:
'5. Regarding Clause III(a) (v), which provides that preference shall be given to candidates who had done MBBS or MD/MS from the Medical Colleges in Kerala for preparation of rank list, it is submitted that Government are willing to modify the said Clause in the following manner.
"Preference shall be given to Indian Citizens of Kerala origin/children of All India Service (AIS) Officers (non Keralites) allotted to Kerala Cadre/those who had done MBBS/MD/MS from the w.p.c.14981/10 etc. 3 Medical Colleges in Kerala for preparation of rank lists. In case sufficient number of candidates in the above category is not available for admission for any reason, candidates from other States will be considered for the balance seats, based on the merit in the Entrance Examinations."'
3. These cases were originally taken up for hearing on 15-7- 2010. Counsel for the petitioners were heard on that day and arguments spilled over to the next day. When hearing resumed on 16- 7-2009, the learned Government Pleader sought for time. Therefore I passed the following interim order on 16-7-2010 and adjourned the hearing of the cases, as desired by the Government Pleader:
'After hearing these writ petitions for sometime the learned Government Pleader today submitted as follows:
As per the MCI Regulations, the first allotment has to be completed by 26.07.2010. The admissions have to be completed only by 30.09.2010. In the meanwhile, if allotments are done provisionally subject to the results of the writ petitions many of the petitioners may get admission to the specialties of their choice. Further if that eventuality occurs the contention that there is wholesale reservation may to some extent may not be forceful. Further according to him the arguments in these writ petitions may not be over by 26.07.2010. Therefore he seeks permission to proceed with the 1st allotment on 26.07.2010. He further undertakes that the students who are allotted seats in the 1st allotment would be specifically informed that their allotments are provisional and subject to the result of these writ petitions and that if any of them wish to oppose the writ petitions they shall get themselves impleaded in these writ petitions so as to avoid a possible contention that they have not been made parties to the writ petition. He therefore submits that these writ petitions may be heard after 26.07.2010 subject to the above so that the same can be finalised before 30.09.2010.
I have heard the petitioners in the writ petitions also on this suggestion. After hearing both sides, I am of opinion that, since for delivering a judgment in these cases it would take quite sometime and at any rate it cannot be done before 26.07.2010 the said course of action may not be prejudicial to the parties to these writ petitions. Accordingly the following interim orders are passed in modification of the earlier interim orders:
The respondents can conduct the first allotment on 26.07.2010 in terms of the provisions of the prospectus, which shall be expressly made subject to the result of these writ petitions with further w.p.c.14981/10 etc. 4 specification that those persons who want to oppose the writ petitions on any ground available to them should get themselves impleaded in these writ petitions. In paragraph 5 of the counter affidavit filed by the State it is specifically stated thus:
5. Regarding Clause III (a) (v), which provides that preference shall be given to candidates who had done MBBS or MD/MS from the Medical Colleges in Kerala for preparation of rank list, it is submitted that Government are willing to modify the said Clause in the following manner.
"Preference shall be given to Indian Citizens of Kerala origin/children of All India Service (AIS) Officers (non Keralites) allotted to Kerala Cadre/those who had done MBBS/MD/MS from the Medical Colleges in Kerala for preparation of rank lists. In case sufficient number of candidates in the above category is not available for admission for any reason candidates from other States will be considered for the balance seats, based on the merit in the Entrance Examinations."
Therefore the provisional allotment, shall be in accordance with clause III (a) (v) with the modification as agreed to in the above paragraph in the counter affidavit. No further allotment shall be made without obtaining orders from this court. Only allotment shall be made and no admissions.
Post for further hearing on 28.07.2010.' On the next posting date, viz. 28-7-2010, the Government Pleader submitted that they propose to amend the prospectus, which according to them, may satisfy the petitioners and sought orders in that regard. Hence on 28-7-2010, I passed the following interim order:
"The pendency of these writ petitions would not stand in the way of the Government taking any steps acceptable to the petitioners for redressing their grievances. If the Government are satisfied that the amendment proposed in I.A. No.10405/2010 in W.P.(C) No.14908/2010 are valid in law it is open to them to implement the same also subject to the contentions of the petitioners. I make it clear that I have not considered the validity of the proposal on merits and it would be open to them to challenge the same it does not work out to their advantage.
Post on next Friday. (6/08/2010)"
Thereafter, Ext.P8 Government order was passed amending Clauses w.p.c.14981/10 etc. 5 III (a) (iii) and Clause V of the prospectus, the operative portion of which reads thus:
'Clause III (a) (iii) "The candidates who have done one year compulsory Rural Service/Senior Residency/Government Service in any of the Government Medical Colleges/Government Hospitals in Kerala will get preference for admission to the seats set apart for them in this regard (10% of the total seats available under General merit) Clause V. Distribution of Seats.
Distribution of available seats to different categories is as shown below:
Seats set Balance Sl. Name of course Total General MES Health apart for the seats candidates under No. Seats merit Quota Service quota one year General Government merit service 1 M.Ch. Paediatric surgery 10 8 1 1 1 7 2 M.Ch. Plastic Surgery 5 3 1 1 0 3 3 M.Ch. Genito Urinary Surgery 13 11 1 1 1 10 4 M.Ch.Thorasic Surgery 6 5 1 0 0 5 5 M.Ch. Neurosurgery 9 6 2 1 1 5 6 Mch.Gastro entrology Surgery 1 0 1 0 0 0 7 D.M. Cardiology 18 14 2 2 1 13 8 DM Gastroentrology 10 9 1 0 1 8 9 DM Neurology 7 5 1 1 1 6 10 DM Nephrology 6 5 1 0 0 5 Total 85 66 12 7 6 60 The Commissioner for Entrance Examinations shall publish the Rank List of PG Medical Super Speciality Admission 2010 on the basis of the Prospectus as modified above immediately. The Director of Medical Education shall conduct 1st Round of Allotment as directed by the Hon'ble High Court."w.p.c.14981/10 etc. 6
Still dissatisfied, some of the petitioners in the writ petitions other than W.P. (C)No.24829/10 amended the writ petition challenging the amendment made by Ext. P8 order also. The Petitioner in W.P. (C) No. 24829/10 is also challenging Ext.P8 order, but on the ground that the Government cannot change the conditions in the prospectus after the commencement of the admission process, and seeking to sustain Clauses III (a) (iii) and Clause V of the prospectus as it originally stood.
4. According to the petitioners, who challenge the clauses in the prospectus and Ext.P8, admissions to post-graduate super- speciality courses are governed by the norms laid down by the Medical Council of India and the impugned clauses providing for admission exclusively to candidates who have done at least one year compulsory rural service/Senior residency/Government service in any of the Government Medical Colleges/Government Hospitals in Kerala, in the first instance, in the absence of whom only others would be considered for admission, is contrary to the norms prescribed for admission by the Medical Council of India and therefore arbitrary, illegal, unconstitutional and violative of the fundamental rights of the petitioners guaranteed under the Constitution of India. They would contend that the said clauses in effect constitute reservation, in favour of persons having government service and senior residency, which w.p.c.14981/10 etc. 7 have been held to be unsustainable by various decisions of the Supreme Court of India. They would also point out that those who have served the government have dual reservation insofar as 40% of the seats are already reserved for those in Medical College service and Health service under the Government as per a statute enacted for the purpose (the validity of which legislation is also stated to be pending consideration in a batch of writ petitions before the Division Bench of this Court on the ground that the State has no legislative competence to enact that legislation), which would amount to dual reservation. They would also contend that reservation based on the state or institution in which candidates have studied also has been found to be unsustainable by the Supreme Court of India in the matter of admission to super-speciality postgraduate medical courses. Although some other clauses have also been challenged those grounds were not argued at the time of hearing.
5. A counter affidavit has been filed by the state in W.P. (C) 16101/10, which has been adopted as the counter affidavits in other writ petitions also, by leave of the court. The contention of the state therein is that the impugned clauses do not provide for any reservation, but only preference, which is not prohibited by the Medical Council or the Supreme Court. According to them the same is only an eligibility criterion, which cannot be equated with communal or other w.p.c.14981/10 etc. 8 reservations, which only are prohibited. The Government, which establishes, administers and maintains medical colleges spending crores of rupees is entitled to prescribe eligibility conditions for admissions to courses in medical colleges, which cannot be termed to be arbitrary or illegal, which only has been done by the impugned clauses, is their contention.
6. The Petitioner in W.P. (C) No. 24829/10 supports the prospectus as it originally stood before amendment by Ext. P8 and challenges Ext. P8 on the ground that the Government cannot modify the prospectus after the selection process has begun.
7. I have considered the contentions of all parties on the basis of the arguments advanced at the time of hearing.
8. The primacy of the Medical Council of India, in the matter of laying down standards of medical education in the country, by virtue of powers conferred on them under the Indian Medical Council Act, 1956, has been recognised by the Supreme Court of India in the decision of Preeti Srivatava (Dr.) V State of M.P., (1997) 7 SCC 120, in which the Supreme Court has held that "the scheme of Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council" and that "the universities must necessarily be guided by the standards prescribed under w.p.c.14981/10 etc. 9 Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act". The Medical Council of India has framed the Postgraduate Medical Education Regulations, 2000, which although is in respect of super-speciality post graduate courses (D.M. and M.Ch.) also, (as is clear from clause 10 (2) which prescribes the period of training for D.M. and M.Ch. Courses) prescribe common standards for all postgraduate courses, which include super- speciality postgraduate courses. The same prescribes the criteria for selection of postgraduate students, generally, in clause 9 thereof, as it stood before its amendment in 2009, thus:
"9. SELECTION OF POSTGRADUATE STUDENTS.
1. Students for postgraduate medical courses shall be selected strictly on the basis of their academic merit.
2. For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses:-
(a) On the basis of merit as determined by the competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same state; or
(b) On the basis of merit as determined by a centralised competitive test held at the national level; or
(c) On the basis of the individual cumulative performance at the first, second and their MBBS examination, if such examination have been passed for the same university; or
(d) Combination of (i) and (iii):
Provided that wherever entrance test for postgraduate admission is held by the State Government or a university or any other authorised examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical courses shall be fifty percent for general category candidates and 40 percent for the candidate belonging to Scheduled Castes, Scheduled Tribes and Other backward Classes.w.p.c.14981/10 etc. 10
Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent by the management of the institution on the basis of the merit.
By amendment notification No. MCI.18(1)/2009-Med. /22653 dated 21-7-2009, that clause was substituted thus:
"1) (a) Students for postgraduate medical courses shall be selected strictly on the basis of their academic merit.
(b) 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas.
2) For determining the `Academic Merit', the University/Institution may adopt the following methodology:-
(a) On the basis of merit as determined by the `Competitive Test' conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same state; or
(b) On the basis of merit as determined by a centralised competitive test held at the national level; or
(c) On the basis of the individual cumulative performance at the first, second and third MBBS examination, provided admissions are University wise; or
(d) Combination of (a) and (c):
Provided that wherever entrance test for postgraduate admission is held by the State Government or a university or any other authorised examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical courses shall be fifty percent for general category candidates and 40 percent for the candidate belonging to Scheduled Castes, Scheduled Tribes and Other backward Classes. Provided further that in Non-Governmental institutions fifty percent of the total seats shall be filled by the Competent Authority notified by the State Government and the remaining fifty percent by the management(s) of the institution on the basis of the Inter-se Academic Merit."
Since the Indian Medical Council Act and the Regulations framed thereunder in respect of postgraduate medical courses find their w.p.c.14981/10 etc. 11 source of legislative power under Entry 66 of Schedule VII of the Constitution of India, relating to determination of Standards in institutions of higher education, the power of the State Government to legislate in respect of that subject, in exercise of powers under Entry 25 of List II, is clearly excluded, as held by various decisions of the Supreme Court of India (See for example, State of T.N. and another V Adhiyaman Educational and Research Institute and others, (1995) 4 SCC 104 and Dr. Preeti Srivastava's case supra), except, perhaps, for prescribing better or higher standards of education.
Therefore, since the Medical Council has already laid down the method of selection of candidates for post graduate courses, which mandates that selection of students shall be strictly on the basis of merit, which does not give any leeway for the state to exercise their discretion in the matter of prescribing criteria for selection other than on the basis of merit, if the criteria prescribed in Ext. P1 or Ext. P8 cannot be said to be either merit based or prescribing higher standards, those would be beyond the legislative powers of the State Government.
9. The question of reservations in admissions to super- speciality postgraduate courses came up for consideration of the Supreme Court of India as early as in 1980 in the decision of Jagdish Saran V Union of India, (1980) 2 SCC 768 and again in Pardeep Jain v Union of India, (1984) 3 SCC 654. In Pradeep Jain's case, w.p.c.14981/10 etc. 12 quoting the eloquent words of Justice Krishna Iyer J., in his inimitable style, from Jagdish Saran's case, the Supreme Court held thus in paragraph 22:
'22. So much for admission to the MBBS course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to the post-graduate courses, such as, MD, MS and the like. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. It was rightly pointed out by Krishna Iyer, J., in Jagdish Saran case5, and we wholly endorse what he has said:
"The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. (SCC pp. 778-79, para 23) * * * If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical w.p.c.14981/10 etc. 13 departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless. (SCC p. 785, para 39) * * * Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post- graduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super- skilled specialists, not humdrum second-rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post-graduate or post-doctoral." (SCC p. 786, para 44) These passages from the judgment of Krishna Iyer, J., clearly and forcibly express the same view which we have independently reached on our own and indeed that view has been so ably expressed in these passages that we do not think we can usefully add anything to what has already been said there. We may point out that the Indian Medical Council has also emphasized that playing with merit, so far as admissions to post-graduate courses are concerned, for pampering local feeling, will boomerang. We may with advantage reproduce the recommendation of the Indian Medical Council on this point which may not be the last word in social wisdom but is certainly worthy of consideration:
"Students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the Universities."
The Medical Education Review Committee has also expressed the opinion that "all admissions to the post-graduate courses in any institution should be open to candidates on an all-India basis and there should be no restriction regarding domicile in the State/Union Territory in which the institution is located". So also in the policy statement filed w.p.c.14981/10 etc. 14 by the learned Attorney General, the Government of India has categorically expressed the view that:
"So far as admission to the institutions of post-graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all-India merit subject to constitutional reservations in favour of Scheduled Castes and Scheduled Tribes."
We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post- graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all- India basis."
After recapitulating all the earlier decisions on the subject, the Supreme Court again reiterated the same view, in Dr. Preeti Srivastava's case (supra), in paragraphs 23 and 62, thereof, thus:
"23. This Court has repeatedly said that at the level of superspecialisation there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of a superspeciality, something more than a mere professional competence as a doctor is required. A superspecialist acquires expert knowledge in his speciality and is w.p.c.14981/10 etc. 15 expected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is in the public interest that we promote these skills. Such high degrees of skill and expert knowledge in highly specialised areas, however, cannot be acquired by anyone or everyone. For example, specialised sophisticated knowledge and skill and ability to make right choices of treatment in critical medical conditions and even the ability to innovate and devise new lines of treatment in critical situations, requires high levels of intelligent understanding of medical knowledge or skill and a high ability to learn from technical literature and from experience. These high abilities are also required for absorbing highly specialised knowledge which is being imparted at this level. It is for this reason that it would be detrimental to the national interest to have reservations at this stage. Opportunities for such training are few and it is in the national interest that these are made available to those who can profit from them the most viz. the best brains in the country, irrespective of the class to which they belong.
xxx xxx xxx
62. In the premises, we agree with the reasoning and conclusion in Dr Sadhna Devi v. State of U.P.2 and we overrule the reasoning and conclusions in Ajay Kumar Singh v. State of Bihar1 and Post Graduate Institute of Medical Education & Research v. K.L. Narasimhan3. To conclude:
1. We have not examined the question whether reservations are permissible at the postgraduate level of medical education.
2. A common entrance examination envisaged under the regulations framed by the Medical Council of India for postgraduate medical education requires fixing of minimum qualifying marks for passing the examination since it is not a mere screening test.
3. Whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the postgraduate level of medical education is a question which must be decided by the Medical Council of India since it affects the standards of postgraduate medical education. Even if minimum qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the general category candidates at this level. The percentage of 20% for the reserved category and 45% for the general category is not permissible under Article 15(4), the same being unreasonable at the postgraduate level and contrary to the public interest.
4. At the level of admission to the superspeciality courses, no special provisions are permissible, they being contrary to the national interest. Merit alone can be the basis of selection."w.p.c.14981/10 etc. 16
Again after referring to all the previous decisions, in a concurring judgment of the Supreme Court in Saurabh Chaudhuri V Union of India, (2003) 11 SCC 146, Justice AR. Lakshmanan has held thus:
"Conclusions (1) xx xx xx xx xx xx xx xx xx (2) As regards feasibility of constitutional reservations at the level of superspecialities, the position is that the judiciary has adopted the dominant norm i.e. "the higher the level of speciality the lesser the role of reservation". At the level of superspecialities the rule of "equal chance for equal marks" dominates. This view equally applies to all superspeciality institutions.
xx xx xx xx xx xx xx xx xx xx"
10. From the above quoted decisions, it is clear, without any doubt whatsoever, that the Supreme Court has held that the scheme of Indian Medical Council Act, 1956, does not give an option to the State Government/Universities to follow or not to follow the standards laid down by the Indian Medical Council and that the State Government/Universities must necessarily be guided by the standards prescribed by the Medical Council of India, if their degrees or diplomas are to be recognised under the Medical Council of India Act. It is further clear therefrom that the Supreme Court has consciously prohibited all kinds of reservations and institutional preferences in admissions to super-speciality post-graduate medical courses.
11. Therefore, I shall first consider whether the impugned clauses are violative of the minimum standards prescribed by the Indian Medical Council, as per the Regulations framed by them, in w.p.c.14981/10 etc. 17 exercise of the powers conferred on them by the Indian Medical Council Act. As is clear from clause 9 of the Postgraduate Medical Education Regulations, the Medical Council has prescribed minimum standards for admission to postgraduate medical courses. The said regulation categorically lays down that students for admission to postgraduate medical courses shall be selected strictly on the basis of academic merit. The methodology for determining academic merit is also specifically stipulated therein. Therefore the Government cannot prescribe a different standard, for such selection in the prospectus for admissions, in the State of Kerala, for those courses. Formerly, prior to amendment in 2009, the Regulations did not permit any relaxation in the standards by way of any reservations or preferences and students for postgraduate medical courses were to be selected strictly on the basis of academic merit. But the Medical Council consciously made one exception, by the amendment of 2009, in the matter of admission to Postgraduate Diploma Courses only. It cannot also be said that Postgraduate Diploma Courses would include other courses also, since clause 10 thereof prescribes specific periods of training for M.D. /M.S., D.M. /M.Ch. and Diplomas separately indicating thereby that the Medical Council treated the three postgraduate courses differently. It is to be particularly noted that the said exemption is by reservation for medical officers in Government service, who have served for at least w.p.c.14981/10 etc. 18 three years in remote and difficult areas, with a further condition that those candidates shall serve for two more additional years in remote and/or difficult areas after acquiring PG Diploma. As such, the impugned clauses III (a) (iii) and V are clearly against those standards prescribed by the Medical Council of India and therefore unsustainable, going by the Supreme Court decisions quoted above. If at all such reservation is permissible in admissions to super-speciality postgraduate courses also (which it is not), that could only have been for medical officers in the government service, who have served for at least three years in remote and difficult areas and not for other medical officers with less years of service in remote and difficult areas and not also for candidates who have undergone senior residency.
Institutional preference as in clause III (a) (v) is also out of question, as the same is also not authorised by the minimum standards prescribed by the Indian Medical Council.
12. The learned Government Pleader seeks to justify the impugned clauses on the ground that what have been prohibited are only reservations and the impugned clauses do not provide for reservations but only preferences. He would contend that the preparedness of a doctor to serve in rural and difficult areas and the sense of social commitment and dedication to serve the poor etc. themselves are part of the merit of a person, as laid down by the w.p.c.14981/10 etc. 19 Supreme Court in Pradeep Jain's case (supra), particularly paragraph 12 thereof, which reads thus:
'12. But let us understand what we mean when we say that selection for admission to medical colleges must be based on merit. What is merit which must govern the process of selection? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor. We agree with Krishna Iyer, J., when he says in Jagdish Saran case5:
(SCC p. 778, para 21) "If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit -- and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears -- then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases."
Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation.' I am of opinion that the said contention does not go hand in hand with the provisions in the impugned clauses and the averments in the counter affidavit of the state. First of all what the Supreme Court refers is the inherent selfless desire in a doctor to do rural service put in practice by him/her voluntarily and not an imposed one accepted as a condition for getting admission to various medical courses. That should form part of the basic character of a person translated into w.p.c.14981/10 etc. 20 practice and not a compulsorily imposed one. Here, the clause itself speaks of `compulsory rural service' which was made a condition for admission to qualifying courses in medicine and not rendered voluntarily out of a genuine selfless desire to serve the poor people in rural areas. Further that was made a condition for admission only very recently namely, 2006 and candidates who had passed the qualifying examinations prior to 2006 were not required to undergo such compulsory rural service as a mandatory condition. Further it is doubtful whether candidates who got admission in the all India merit quota seats are not required to undergo such a bonded obligation.
(The question whether candidates who got admission in the all India merit quota is subject to the said obligation, of course, is pending consideration before this court in a batch of writ petitions). In fact, if such a benefit was conferred on persons who voluntarily or by virtue of their postings in service, served in difficult/rural areas prior to the date when the same was made compulsory for admission to MBBS and postgraduate medical courses, that could have been more in tune with the said observations of the Supreme Court. That is not the case here.
13. Further it is the specific averment in the counter affidavit of the Sate that doctors are reluctant to be part of the patient care system under Government service and large numbers of posts are lying vacant since doctors are not willing to join Government service. w.p.c.14981/10 etc. 21 Despite the measures adopted by the Government to ensure service of doctors in Government Hospitals and Medical Colleges Government have been finding it difficult to get the services of doctors in public health institutions in rural areas and it is to attract more doctors to serve the Government particularly in rural and difficult areas such a clause has been introduced in the prospectus. This averment runs counter to their contention based on paragraph 12 of Pradeep Jain's decision (supra). Evidently, the clause is not intended to find out meritorious doctors, who had the inclination to serve the poor and the needy, but to coax doctors into accepting government jobs by putting the carrot of preference in super-speciality postgraduate admissions before them, which hardly satisfies the noble ideal the Supreme Court wanted to promote in doctors. Therefore the contention on the basis of that decision to justify the impugned clause is clearly counterproductive and therefore unsustainable.
14. Moreover in clause 9 of the MCI Regulations, they have consciously limited the criteria to academic merit instead of merit generally. The noble desire to serve the poor and needy, though is a measure of the general merit of a candidate, the same certainly is not academic merit, which alone has been made the criterion for selection by the MCI. Therefore going by the Regulations, merits other than academic merit cannot be taken into consideration. w.p.c.14981/10 etc. 22
15. In this connection it must be noted that the petitioners challenging the impugned clauses have got a contention that unless all candidates had an equal chance to obtain that qualification, the same cannot be prescribed as a qualification. Their reasoning is that it was not part of their conditions for admission to the qualifying examinations that they should serve the government for a prescribed period and therefore they had no occasion even to attempt to acquire the qualification of compulsory rural service. It is ironic that instead of mere service in rural areas, the prescription is compulsory rural service, which also goes counter to the Government's contention that preparedness to serve in rural areas is part of the assessment of merit of the candidates. For such a condition to be valid, I am of opinion that, the other competing candidates must also have had an opportunity to try to acquire that qualification. The same applies to senior residency qualification also. I have specifically asked the Government Pleader as to whether senior residents are selected after a merit based selection procedure, inviting applications for the same. The learned Government Pleader did not give a satisfactory answer. On the other hand, the counsel for the petitioners would assert that there is no procedure of inviting applications for senior residency and selecting doctors on the basis of merit for senior residency. I am of opinion that such a qualification by preference cannot be a merit based w.p.c.14981/10 etc. 23 admission process and therefore that condition is also unsustainable. Regarding the third preference in clause III (A) (iii), I am of opinion that when there is already reservation for employees in government service separately by legislation (the validity of which is pending consideration by a Division Bench in a batch of writ petitions), it beats logic as to how again another reservation/preference/qualification can be prescribed again for one year government service. In any event that cannot certainly be a merit based qualification, which is mandatory as per the Regulations of the Medical Council.
16. Despite the willingness expressed in paragraph 5 of their counter affidavit to amend the clause as stated therein, without doing the same in Ext.P8, the learned Government Pleader seeks to justify clause III (A) (v) also relying on the Supreme Court decision in Gujarat University V Rajiv Gopinath Bhatt and others (1996) 4 SCC 60, in paragraph 5 of which the Supreme Court has held thus:
'5. Without examining that question in detail it may be pointed out that the aforesaid judgments were not in connection with the admission in superspeciality course. At the same time, we reiterated that the object of any institution while selecting applicants for admission is to select the best amongst the applicants, regional and other considerations which do not satisfy the test of Article 14 of the Constitution should not affect the merit criteria. But from time to time, this Court taking into consideration the local and regional compulsions has been making efforts to strike a balance so that the students who have pursued the studies in a particular State and have been admitted in the medical colleges of that State are not suddenly thrown on the street when question of their admission in superspeciality courses arises, in which the seats are limited in number. In the case of Pradeep Jain v. Union of India2 this Court has observed: (SCC p.687, para 19) w.p.c.14981/10 etc. 24 "We are therefore of the view that a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or premedical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State ...."
The same question was again examined in the case of Dinesh Kumar (Dr) v. Motilal Nehru Medical College3. Recently, in the case of Anant Madaan v. State of Haryana4 it was said: (SCC pp. 141-42, para
13) "The eligibility condition, therefore, which requires that the candidate should have studied 10th, 10+1 and 10+2 classes from a recognised institution in the State of Haryana is neither arbitrary nor unreasonable and the Punjab and Haryana High Court has rightly upheld the same."
Therefore, if a rule has been framed that out of the merit list prepared, preference is to be given for admission in the superspeciality courses to the students of the university in question per se it cannot be held to be arbitrary, unreasonable or violative of Article 14 of the Constitution.' From the same it is expressly clear that the three judge Bench in that case had, without examining the question in detail, held that institutional preference is permissible in super-speciality postgraduate medical admission, relying on paragraph 19 of Pradeep Jain's decision (supra) without noting the following finding in paragraph 22 in that decision itself:
"22. ................. But, Even in admission to the post-graduate course, we would direct that so far as super-specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.'' (Underlining supplied) It is clear from paragraph 22 that the finding in paragraph 19 was w.p.c.14981/10 etc. 25 confined to admissions in other medical courses and the Constitution Bench had consciously excluded such institutional preference in super-
speciality postgraduate medical admissions. Further in paragraph 62 of another Constitution Bench decision in Dr. Preeti Srivastava's case (supra), the Supreme Court has later held as follows:
62. In the premises, we agree with the reasoning and conclusion in Dr Sadhna Devi v. State of U.P.2 and we overrule the reasoning and conclusions in Ajay Kumar Singh v. State of Bihar1 and Post Graduate Institute of Medical Education & Research v. K.L. Narasimhan3. To conclude:
1. We have not examined the question whether reservations are permissible at the postgraduate level of medical education.
2. A common entrance examination envisaged under the regulations framed by the Medical Council of India for postgraduate medical education requires fixing of minimum qualifying marks for passing the examination since it is not a mere screening test.
3. Whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the postgraduate level of medical education is a question which must be decided by the Medical Council of India since it affects the standards of postgraduate medical education. Even if minimum qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the general category candidates at this level. The percentage of 20% for the reserved category and 45% for the general category is not permissible under Article 15(4), the same being unreasonable at the postgraduate level and contrary to the public interest.
4. At the level of admission to the superspeciality courses, no special provisions are permissible, they being contrary to the national interest. Merit alone can be the basis of selection."
The fact that a candidate has studied for MBBS in Medical Colleges in Kerala cannot be indication of academic merit and when a Constitution w.p.c.14981/10 etc. 26 Bench of the Supreme Court and the Medical Council has laid down that super-speciality postgraduate medical admission shall be strictly on the basis of academic merit, at least on that point Gujarat University's case (supra) must be deemed to have been overruled by Dr. Preeti Srivastava's case (supra) or that it is no longer good law.
17. Even otherwise institutional preference has to be within permissible limits as laid down by the Supreme Court which cannot go beyond 50% [see D.Pradeep Jain's case (supra), AIIMS Students' Union's case (infra) and Saurabh Chaudri's case (supra) as also my decision in Praveen S.Lal v. State of Kerala, 2006 (4) KLT 712]. Here sub clause (v) of clause III (a), stipulates that only in the absence of candidates who had done MBBS or MD/MS from the Medical Colleges in Kerala candidates from other states will be considered, which in practice excludes the others from consideration.
18. On the question of academic merit there appears to be a sea of difference between the candidates aspiring for admission in the merit stream and those seeking admission on the basis of the impugned clauses going by Ext. P10 produced by the petitioner in W.P. (C) 15481/2010, which has not been disputed by the Government. According to the petitioner in that writ petition, if the impugned clauses are upheld, persons who have scored just 374 marks in the entrance examination would steal a march over candidates who have w.p.c.14981/10 etc. 27 scored marks of 500 and above. This is not disputed by the Government. If that be so, academic merit, instead of being the criterion for selection for admission, would become a casualty, which is against all principles laid down by the Supreme Court in the abovesaid decisions, in the matter of admission to medical super-speciality postgraduate courses. I have no doubt that such a situation should be prevented at all costs, if standards of higher education has to be preserved in this country.
19. It is amusing to note that these clauses are included under the common heading 'Nativity', although clause III(a)(iii) does not relate to nativity at all. In fact strictly construed, even clause III(a)(v) does not relate to nativity. This fact would reveal lack of application of mind on the part of the Government in the drafting of those clauses.
20. It is clear from the above discussion that none of the reasons advanced by the Government to justify the impugned clauses in the prospectus either as it originally stood or as amended by Ext.P8, would stand judicial scrutiny and the same are only to be declared as unconstitutional, arbitrary, discriminatory and illegal.
21. The petitioner in W.P. (C) No. 24829/10, seeks to justify the impugned clauses as it stood in the un-amended prospectus itself, as a source of entry, in contra-distinction to reservation, which only, according to him, is prohibited, relying on the decisions in Dr. Preeti w.p.c.14981/10 etc. 28 Srivastava's case (supra) and the decision of the Supreme Court in K. Duraisamy V State of Tamilnadu, (2001) 2 SCC 538, which permitted admissions from different sources of entry which do not constitute reservations as contemplated in Articles 15(4) and 16(4) of the Constitution of India. I am of opinion that such contention is misplaced. First of all, the Government, who issued the prospectus, themselves have not sought to justify the impugned clauses on that ground. Secondly, the prospectus itself qualifies the clause with the heading `eligibility for admission'. Thirdly, as a source of entry, there is already a percentage of seats set apart for doctors serving in Medical Education Service and Health Service under the Government. There cannot be another separate source of entry carving out another segment of the same source. In this connection a contention on the basis of Duraisami's case (supra) was dealt with by the Supreme Court in paragraphs 27 to 29 of the decision in A.I.I.M.S. Students Union V A.I.I.M.S., AIR 2001 SC 3262 thus:
"27. Reservation is guided by consideration of ensuring allotment of a privilege or quota to, or conferral of State largesse on, a defined class or category of limited persons dispensing with the need of competition with another defined class of persons or remaining persons. Beneficiary of reservation is necessarily a minor or smaller group of persons which deservedly stands in need of protection or push up because of historical, geographical, economic, social, physical or similar such other handicaps. Persons consisting in reserved category are found to be an under-privileged class who cannot be treated on par with a larger and more privileged class of persons and shall be denied social justice and equality unless protected and encouraged. Sources of recruitment or entry are carved out for the purpose of achieving a defined proportion of intermingling at the target or destination between two or more categories of such w.p.c.14981/10 etc. 29 persons who though similarly situated or belonging to one class to begin with, have stood divided into two or more categories by fortuitous circumstances and unless allowed entry from two separate sources one would exclude or block the other. No one of the two classes can be said to be weaker than the other. The factor impelling provision of different or separate sources of entry may not provide justification for reservation. Two sources of entry ensure an equal distribution between two segments of one society. The emphasis in reservation is on the subjects; the emphasis in providing sources of entry is on the subject matter. Reservation is protective discrimination; provision for sources of entry is aimed at securing equal or proportionate distribution. The characteristics of the two may to some extent be over lapping yet the distinction is perceptible though fine.
28. In Kumari Chitra Ghosh v. Union of India (1969) 2 SCC 288, the test laid down for determining validity of sources of admission are that the sources are properly classified whether on territorial, geographical or other reasonable basis and must have a rational nexus with the object of imparting a particular education and effective selection for the purpose. In laying down sources of entry there is no question of any preferential treatment being accorded to any particular category or class of persons desirous of receiving medical education over the other.
29. In our opinion, reliance by the learned counsel for the appellant on the decision in K. Duraisamy's case (supra) is entirely misconceived inasmuch as the questions which are arising for decision in the case before us are different and attract applicability of different considerations. Institute's in-house candidates do not bear any similarity with in-service candidates considered in K. Duraisamy's case so as to claim analogy with them and have the benefit of the ratio of K. Duraisamy's case. Secondly, the question whether merit can be sacrificed to such an extent as to be bidden almost a good- bye' resulting into candidates too low in merit being preferred to candidates too high in merit and the margin of difference between the two being too wide, did not arise for consideration before this Court in K. Duraisamy's case. We are dealing with a case where the division of seats between two classes coupled with two level reservation and unique percentile method has been so carved out, as if tailor-made, as is resulting into a reservation which ensures allotment to the extent of 100% of PG seats followed by guaranteed placement in the choicest of creamy disciplines to the candidates belonging to one category (i.e. Institute's in-house candidates) without regard to their competitive merit. This is not a reservation but a super-reservation and certainly not a source of entry. The first submission of the learned counsel for the appellants therefore fails.
(underlining supplied) I am of opinion that applying the tests laid down by the Supreme Court w.p.c.14981/10 etc. 30 in the above case, the impugned clauses cannot be justified as a source of entry at all. Moreover, in this case the impugned clause is contemplated as an eligibility condition and not as a source of admission at all. Further, as I have stated earlier, such a source of entry should also be a source, which all intending applicants had reasonable equal opportunity to be part of. Here compulsory rural service and senior residency were not sources which all the candidates had a reasonable equal opportunity to reach. For acquiring compulsory rural service, they were never offered any opportunity at any time.
Even if they were prepared to do compulsory rural service they could not have. Of course, the Government in their counter affidavit has stated that even if the petitioners had completed their course before compulsory rural service was introduced as a condition for admission to MBBS, and postgraduate courses in medicine or had taken their degree or post graduation in medicine from outside the State, they had enough opportunity to serve the Government on contract basis, which they did not avail of. That contention does not take into account the facts that the prescription is compulsory rural service and since in contract appointments there is no security of employment, no person can be expected to opt for a contract employment without security of employment or future, instead of a permanent appointment, simply for acquiring the qualification for admission, which was never in w.p.c.14981/10 etc. 31 contemplation by anybody before and which would violate the minimum standards prescribed by the Medical Council of India. For doing senior residency there was no merit based selection process inviting applications from candidates desirous of undergoing senior residency and therefore the petitioners had no reasonable opportunity to acquire that qualification also. For persons in government service, the Government have already prescribed a separate source of entry by way of reserving certain percentage of seats to be filled up from that source by a legislation enacted for that purpose, though that legislation itself is under challenge in other writ petitions before this court. In this connection it should also be noted that even in Ext P8, the Government has not chosen to amend clause III (a) (iv), which stipulates that only in the absence of sufficient number of candidates fulfilling the condition in clause (iii) thereof, candidates otherwise qualified would be considered and therefore that alleged source outweighs all other sources based on academic merit, which cannot be permitted under law. Therefore I am not satisfied that the candidates for admission contemplated by the impugned clauses constitute a source of admission as argued by the counsel for the petitioner in W.P. (C) No. 24829/10. Since the impugned clauses, as obtaining in the un-
amended prospectus itself, are unsustainable in law, I do not propose to consider the other contention of the petitioner in W.P. (C) No. w.p.c.14981/10 etc. 32 24829/10 that Ext. P8 amendment is unsustainable on the ground that the Government cannot change the conditions in the prospectus after the admission process has already started.
22. For all the foregoing reasons, I declare that the impugned clauses in Ext. P1 prospectus, both before and after the amendment to the same by Ext. P8 Government Order, are unconstitutional, arbitrary, discriminatory and illegal and quash the same, directing the Government not to make admissions based on the same. After conclusion of arguments by both sides and judgment was reserved, I had issued an interim order on 6.9.2010, pending preparation of judgment, thus:
"Arguments have been completed and the writ petitions have been reserved for judgment. Since the preparation of judgment would take sometime, I am inclined to pass the following interim order:
The Government is free to complete admissions in all seats except six seats set apart for candidates who have been done one year compulsory Rural Service/Senior Residency/Government Service in any of the Government Medical Colleges/Government Hospitals in Kerala mentioned in the distribution of seats as per G.O. (Rt.)No. 2972/2010/H&FWD dated 31.07.2010."
Consequently, I direct the Government to make admissions to all the seats available, other than those set apart for employees of the Medical Education Service and Health Service, as per the separate statute, including the balance 6 seats shown in the amended clause V as per Ext. P8, as "set apart for one year Government service candidates also", in accordance with the inter-se merit of the w.p.c.14981/10 etc. 33 candidates in the rank list prepared in the entrance examination, without reference to the impugned clauses, after giving the candidates opportunity to make their options in accordance with the relevant provisions of the prospectus. Since the last date for completing admissions fixed by the Medical Council is 30-9-2010, the Government shall see that all the seats are duly filled up before that date, in accordance with the above directions.
All the writ petitions except W.P. (C) No. 24829/10 are allowed as above. Consequently, W.P. (C) No. 24829/10 is dismissed.
The Government shall keep in mind that since ours is a country governed by rule of law, their good intentions in incorporating the impugned clauses, however lofted those may be, can be translated into practice only in accordance with the law of the land. I am constrained to observe that the way things have been done by the Government, not much thought process has gone into the drafting of the original clause III or the amended clause III, in Ext.P1 prospectus, to ensure their legal validity, which ought to have, considering the importance of the very process to the polity. I would conclude this judgment by imploring the Government to keep in mind the following observation of AR. Lakshmanan J. in Saurabh Chaudhuri's case (supra) in future, while drafting prospectuses for admission of students to various courses:
w.p.c.14981/10 etc. 34
"109. Before parting with the case, I am of opinion that the younger generation in our society nurturing fond hopes and aspiration for their future professional careers should feel it as a pleasurable experience to explore the available options in higher education. They should be spared from the mental torture due to hassles and unsavoury experiences in getting to the first base. To the extent possible, they should be made to feel that they are part of one nation. Tensions and frustrations at their impressionable age will surely result in a society with distorted and negative values damaging the foundations of a healthy society. The policies and procedures for admissions should be viewed from the larger impact on the future of India."
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
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P.A. to Judge