Madras High Court
M.S.Vijay Anand vs State Of Tamil Nadu Rep. By on 29 September, 2009
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.09.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.14855, 15355, 16226 and 16797 OF 2009 and connected Miscellaneous Petitions. .. M.S.Vijay Anand .. Petitioner in WP.14855/09 Dr.Dhinakar Babu .. Petitioner in WP.15355/09 Dr.S.Srikumar .. Petitioner in WP.16226/09 Dr.K.Balasubramani .. Petitioner in WP.16797/09 vs. 1.State of Tamil Nadu rep. By its Secretary to Government Higher Education Department Secretariat, Chennai 600 009. 2.The Secretary Selection Committee Directorate of Medical Education Kilpauk, Chennai 600 010. 3.Medical Council of India rep. By its Secretary Pocket No.14, Sector 8 Dwarka Phase 1 New Delhi 110 077. .. Respondents 1 to 3 in Wps.14855,16226 & 16797/09 4.Dr.D.Jason Philip .. R.3 in WP.15355 of 2009 5.Dr.J.Chandrasekar .. R.4 in WP.14855 of 2009 6.Dr.R.Sampathkumar .. R.4 in WP.16226 of 2009 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus and Declaration as stated therein. For petitioner : Mr.C.Selvaraju,Sr.Counsel in Wps.14855 & for Mr.S.Mani 16226 of 2009. For petitioner : Mr.R.Muthukumarasamy,Sr.Counsel in WP.15355/2009 for Mr.A.Jeenasenan For petitioner : Ms.R.Gowri in WP.16797/2009 For respondents : Mr.P.Wilson, 1 & 2 in all the Addl.Advocate General Wps. for Mr.G.Sankaran,Spl.G.P.(Edn.) For 3rd respondent : Mr.V.P.Raman in Wps.14855,16226 & 16797 of 2009 For 3rd respondent : Mr.R.Suresh Kumar and 4th respondent in Wps.15355 & 16226/09. .. COMMON ORDER
The above writ petitions relate to the admission to super- speciality courses in medicine including M.Ch. and D.M. for the year 2009-10.
2. While the writ petitioner in W.P.No.14855 of 2009 has filed the petition praying for declaration that the award of marks for experience for admission in super speciality course i.e., M.Ch. (Gastro Enterology) for the academic year 2009-10 is arbitrary and unconstitutional and for direction against the respondents to consider the case of the petitioner for admission to M.Ch. (Gastro Enterology), the petitioner in W.P.No.16226 of 2009 has prayed for direction against the respondents to select three seats of D.M.(Cardiology) from the open category exclusively on the basis of the entrance examination marks for the year 2009-10 ignoring the award of one mark for experience of every year declaring the same as illegal. The petitioner in W.P.No.15355 of 2009 has filed the writ petition praying for direction against the respondents 1 and 2 to reckon the rural service rendered by the candidates and award marks for the same for M.Ch. (Genito Urinary Surgery) Course for the academic year 2009-10 as it was stated to have been done earlier and consequently make admission for the year 2009-2010.
3. In all the above said three cases, while admitting the writ petitions, a direction was issued by this Court on 11.8.2009 against the second respondent, the Secretary, Selection Committee, to keep one seat in each discipline vacant.
4. In W.P.No.16797 of 2009 which was filed subsequently there was no interim order passed and the said petition is filed for declaration that the award of mark for experience for admission in higher speciality course i.e., M.Ch. (Neuro Surgery) for the academic year 2009-10 as unconstitutional and arbitrary and for direction to consider the petitioner's case on the basis of entrance examination mark.
5. Therefore, the issue involved in all theses cases is, as to whether the awarding of marks in respect of admission to super-speciality medical courses for the year 2009-10 for experience is valid and permissible in law or as to whether the admission should be made strictly based on the marks obtained in the entrance examination.
6. The petitioner in W.P.No.14855 of 2009 who was seeking admission to M.Ch. (Gastro Enterology) has completed his M.B.B.S. Course in June, 2003 and passed his M.S.(General Surgery) in September, 2008. Pursuant to the call by the second respondent, the Selection Committee, he applied for M.Ch. (Gastro Enterology Master of Chirugerie). In the entrance examination conducted by the second respondent on 26.7.2009, for which results were published on the next day, viz., 27.7.2009, he got 77.25 marks out of 90 marks. He belongs to M.B.C. community with registration No.91227. The total number of seats available in M.Ch.(Gastro Enterology) is four, out of which two seats are reserved for service candidates and the remaining two seats are to be filled up in open competition.
6(a). As per the notification issued by the second respondent, 90 marks are allotted for entrance examination and 10 marks are allotted for experience. The experience gained by the candidate after completion of his post-graduate degree in medical subjects is taken into consideration at the rate of one mark for every year subject to the maximum of 10 marks. According to the petitioner, the first candidate in M.Ch.(Gastro Enterology) obtained 78 marks in the entrance examination while he got 77.25 marks out of 90 marks. By virtue of marks given for experience, he may not be able to get admission in the merit list for non-service category.
7. The writ petitioner in W.P.No.16226 of 2009 has passed his M.B.B.S. in February 2002 and completed his M.D.(General Medicine) in 2004-2007. He applied for admission to D.M.(Cardiology) Super-speciality Course and in the entrance examination, he obtained 78.75 marks out of 90 marks. There are six seats in D.M.(Cardiology), out of which three are reserved for service candidates and the remaining three are reserved for non-service candidates on merit. The service candidates are also entitled to compete under merit list which, according to the petitioner, is meant for non-service candidates. According to the petitioner, he remains first by obtaining 78.75 out of 90 marks in the entrance examination. However, by virtue of addition of 10 marks against the services rendered by the service candidates, he has no chance of being selected.
8. The writ petitioner in W.P.No.15355 of 2009 completed his M.B.B.S. Course and internship in May, 1999 and after completing his M.D., he was selected by Tamil Nadu Public Service Commission as Civil Assistant Surgeon in 2000 and posted in the Primary Health Centre, Nachalur and he served in Primary Health Centres from 20.4.2000 to 17.7.2003. After rendering rural service for more than three years, he applied for admission into postgraduate course in 2003 and he was selected for M.S. (General Surgery) and allotted the Medical College, Coimbatore. He completed his M.S. (General Surgery) in the year 2006 and thereafter, he was posted in the General Hospital, Kottur where he served from 28.9.2006 to 28.3.2007.
8(a). Thereafter he served as Tutor from 4.4.2007 to 29.4.2009 and he is a Senior Resident Medical Officer. He applied for M.Ch. (Genito Urinary Surgery) in 2009-10. He secured 60.75 marks out of 90 in the entrance examination. Taking note of his two years service after postgraduate degree, he was awarded 2 marks and totally he secured 62.75 out of 100.
8(b). It is his case that the services rendered by him in rural areas for three years before completing postgraduate degree course should have been taken into consideration and as per the terms of the prospectus for the year 2009-10, the rural services were omitted to be taken into consideration for admission to super speciality courses, while the same was considered for the past 10 years. Out of seven seats available in the said course, M.Ch.(GUS), three seats are reserved for service candidates and the remaining seats are for non-service candidates. As the rural services rendered by the petitioner is not taken into consideration, he is likely to lose his chance of getting admission for M.Ch.(GUS) this year.
9. The writ petitioner in W.P.No.16797 of 2009 completed his M.B.B.S. in January, 2002 and M.S. (General Surgery) in Sri Ramachandra Medical College, Chennai in April, 2008. Out of four seats available in M.Ch. (Neuro Surgery), two seats are earmarked for service candidates whereas the remaining two seats are for open category on merit basis. The petitioner obtained 66.25 marks out of 90. The petitioner may not get the chance of admission as in respect of service candidates, marks are being added for their experience.
10. The main ground on which the writ petitions are filed is that for super speciality courses in medicine, merit alone should be the criterion. Inasmuch as the second respondent conducted the entrance examination by which the merit is ascertained, the selection should only be based on the marks obtained in the entrance examination and the clause of the prospectus which enables upto 10 marks to be given for experience to a candidate after completion of postgraduate course in medicine would dilute the merit system. It is their contention that when the prospectus says that after completion of P.G. Course in medical course, a candidate is entitled for one mark for every year, it would lead to mean that even in case where a person who has completed postgraduate course and is idle for many years, he would be awarded a maximum of 10 marks and he cannot be treated as meritorious. According to the petitioners, in the absence of proper criteria to decide about the experience, merely giving one mark for every year to all persons after completion of P.G. Course cannot be termed as a prudent method of ascertaining the merit.
11. It is their further case as it is seen in W.P.No.15355 of 2009 that even if experience is taken into account for the purpose of merit, the experience obtained in rural service should be taken into consideration. It is also their case that when service candidates are given 50% of total seats, the addition of marks to service candidates based on their experience would amount further leniency being shown to them, which cannot be treated as a criterion for deciding the merit. It is the case of the petitioner in W.P.No.15355 of 2009 that while awarding marks for experience, the service rendered by a candidate in rural areas should be taken into consideration for the purpose of admission to super speciality medical courses, but in the present year prospectus, the service rendered in rural areas is taken into consideration for the admission to postgraduate courses while the same is dispensed with for super speciality courses. It is his contention that at the time when he applied for postgraduate medical course, the rural services rendered by him viz., three years at that time was not taken into consideration and even now when he seeks for admission to super speciality course, the prospectus for the present year turns down his request stating that rural service would be taken only for postgraduate courses and not for super speciality courses.
12. In W.P.No.14855 of 2009, the petitioner while impleading the Medical Council of India as third respondent, has also impleaded the service candidate who got selected by addition of marks for experience as 4th respondent. Likewise, in W.P.No.16226 of 2009 also, the selected candidate from service category has been impleaded as 4th respondent. In W.P.No.15355 of 2009, the 3rd respondent is the service candidate who got selected. However, in W.P.No.16797 of 2009, no selected candidate has been impleaded as respondent.
13. In all these cases, it is the case of the Selection Committee as well as the Government that in the prospectus for the year 2009-10 for super speciality courses examinations, there is a specific clause stating that out of 100 marks 90 marks will be earmarked for entrance examination and 10 marks for experience. It is also their case that the allotment of 50% of seats for service category and the remaining for open category has also been mentioned specifically in the prospectus. It is the common knowledge that under open category system even a person who comes under service category will be entitled to compete on merit. Therefore, the claim of service candidates in open category based on merit cannot be ignored. The granting of 10 marks towards experience for service candidates after postgraduate degree is a policy of the Government. It is also the case of the said respondents that it is only after applying on the basis of prospectus and having failed in their efforts to get selected on merit, the petitioners have chosen to challenge the prospectus, which is not permissible. If at all the petitioners are genuine, they should have challenged the term, 'experience' in the prospectus at the time of issue of prospectus and not after the publication of merit list. It is also stated that in respect of D.M. (Cardiology) Course for which the writ petitioner in W.P.No.16226 of 2009 has competed, there are four seats and even as per merit list under open category, there are five candidates above the petitioner. It is stated that for a professional doctor, the experience counts the merit. Even in respect of M.Ch.(Gastro Enterology) for which the petitioner in W.P.No.14855 of 2009 has competed, there are five candidates in the merit list above the name of the petitioner.
14. It is the case of the said respondents that the rural service is taken into account for the purpose of admission to postgraduate course and when such benefit is given at the time of admission to postgraduate course, the same cannot be directed to be taken into account once again for the admission to super speciality courses as that would amount to repetition of awarding marks to service candidates. It is also the case of the respondents that after completion of basic degree in medicine, the doctors are posted in Primary Health Centres and when they complete their postgraduate course in medicine they are not posted in Primary Health Centres, but they are posted in Taluk Hospitals and therefore, their service cannot be treated as rural service.
15. Mr.C.Selvaraju, learned senior counsel appearing for the petitioners in W.P.Nos.14855 and 16226 of 2009 would contend that awarding of 10 marks for experience is against the Regulations of the Medical Council of India. That apart, his contention is that awarding of 10 marks would amount to reservation which is not permissible in the matter of admission to super speciality courses. It is his submission that the State Government is bound to follow the Regulations of the Medical Council of India and inasmuch as it is in the concurrent list of the Constitution of India, the State Government can impose more restrictions than the Medical Council of India Regulations and the Medical Council of India Regulations cannot be diluted. His submission is that merit means only academic qualifications for the purpose of super speciality courses and the experience cannot be treated as merit and such experience would amount to reservation and inasmuch as such reservation is not protected under Article 15(1) of the Constitution of India, the conferring of 10 marks for experience is ultra vires.
15(a). It is his submission that even for conferring 10 marks, it is not explained for which the marks are conferred. It is his submission that when service candidates are already given 50% of total seats, further conferring of 10 marks against experience would amount to reservation within reservation to certain group of persons. Such marks for experience is opposed to the concept of merit. He would rely upon the judgment of the Supreme Court in Dr.Preeti Srivastava vs. State of M.P. (AIR 1999 SC 2894). It is his submission that even otherwise, the State should have obtained permission from the Medical Council of India by relying upon the judgments of the Supreme Court in State of Punjab vs. Dayanand Medical College and Hospital (AIR 2001 SC 3006) and State of M.P. vs. Gopal D.Tirthani (AIR 2003 SC 2952).
15(b). It is his submission that when common entrance test is conducted, both service candidates and open category candidates should be treated on the same footing and there should be no variation. He would rely upon the judgment of the Supreme Court in Saurabh Chaudri vs. Union of India [(2003) 11 SCC 146]. It is his further submission that in the previous year marks were given for rural service and it is for the year 2009-10, irrespective of nature of service, 10 marks are given for experience. He would rely upon the judgment of the Supreme Court in Maharashtra University of Health Sciences represented by Deputy Registrar vs. Paryani Mukesh Jawaharlal [(2007) 10 SCC 201].
15(c). To substantiate his contention that merit alone should be the criterion he would rely upon the judgment of the Supreme Court in Dr.Narayan Sharma vs. Dr.Pankaj KR.Lehkar [(2000) 1 SCC 44]. It is his submission that even in the counter affidavit the respondents have not made out as to the nexus between the object sought to be achieved and the awarding of marks for experience.
16. It is the contention of Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner in W.P.No.15355 of 2009 that the dilution of benefit of rural service which has been given from 2004 onwards for admission to super speciality courses without assigning any reason is unlawful. It is his submission that first of all, the admission to super speciality courses should be made only on merit and if entrance examination is conducted, the marks obtained in the entrance examination should alone be taken into consideration and even if the policy is to encourage service among the doctors, it is only the rural service which has to be taken as experience in consonance with merit and the present system under the prospectus for the year 2009-10 by which marks are given blindly after completion of postgraduate degree in medicine is without any basis whatsoever and cannot be taken as a decision on merit. 16(a). According to him, if the rural service is opposed to merit, the service after postgraduate degree is also to be taken as being opposed to merit. It is his submission that from 2004 onwards, rural service rendered was not taken into consideration for postgraduate course admission and the same was taken into consideration for admission to super speciality courses, however, in 2009-10 it has become altogether different as rural service is taken into account only for admission to postgraduate courses while the same is not taken into account for admission to super speciality courses and the service rendered after postgraduate degree alone is taken into account for super speciality courses. Inasmuch as after postgraduate degree a doctor is not posted in Primary Health Centres and he is posted in Taluk Hospitals, it is not rural service and the writ petitioner is losing rural service benefit for postgraduate course admission and he is also losing now as the rural service is dispensed with for super speciality courses.
16(b). To justify his contention that rural service alone has to be taken as experience, he would rely upon the judgments of the Supreme Court in (1) Dr.Jagdish Saran vs. Union of India [AIR 1980 SC 820], (2) State of M.P. vs. Gopal D.Tirthani [(2003) 7 SCC 83] and (3) Saurabh Chaudri (Dr.) vs. Union of India [(2004) 5 SCC 618]. The said arguments have been adopted by the learned counsel for the petitioner in W.P.No.16797 of 2009.
17. On the other hand, it is the contention of Mr.P.Wilson, learned Additional Advocate General that the prospectus is binding in nature when the prospectus specifically states that 50% seats will be reserved for service candidates and the remaining seats will be given for non-service candidates on merit and that in respect of service and non-service candidates one mark for each year of service after completion of postgraduate course is added subject to the maximum of 10 marks. He would contend that having known about the said contents consciously, the petitioners applied for super speciality courses and even without challenging the said clause at the time of issuing prospectus, after the merit list was published, now the petitioners have filed the present writ petitions and therefore, the writ petitions are liable to be dismissed. 17(a). He would rely upon the judgment in Dr.R.Murali vs. Dr.R.Kamalakkannan (1999(3) CTC 675) to show that the petitioners having taken part in the selection process cannot question the same. To substantiate his contentions, he would also rely upon the judgments in S.Karthikeyan vs. Teachers' Recruitment Board (2007) 3 CTC 814), T.T.Saravanan vs. State of Tamil Nadu (2004 (5) CTC 704), Dr.Preeti Srivastava vs. State of M.P. [(1999) 7 SCC 120] and Suryanarayan Sahu vs. Council of Scientific & Industrial Research [(1998) 2 SCC 162].
17(b). In support of his submission that for professional courses academic merit alone would not decide the efficiency, he would rely upon the judgment in Pre-PG Medical Sangharsh Committee vs. Dr.Bajrang Soni [(2001) 8 SCC 694]. He would submit that the rule that weightage marks given to rural service has been accepted by the Supreme Court and relied upon the judgments in Sanjay Ahlawat vs. Maharishi Dayanand University, Rohtak and others [1995 AIR SCW 228], State of M.P. vs. Gopal D.Tirthani [(2003) 7 SCC 83] and Saurabh Chaudri vs. Union of India [(2003) 11 SCC 146].
17(c). It is his submission that conferring of marks for experience does not amount to diluting the merit system and it is not a reservation. According to him, for professional courses experience is presumed to be merit and the concept of experience was taken into consideration for a long period, that is, from the year 1994 itself and in support of his submission, he would rely upon the judgments in Pre-PG Medical Sangharsh Committee vs. Dr.Bajrang Soni (2001 (8) SCC 694), Dr.K.Sivasubramaniyam vs. Madras Institute of Development Studies (2006 (5) CTC 207), Rashmi Kant vs. Principal G.S.V.M. Medical College (AIR 1989 Allahabad 55 DB), Dr.Preeti Srivastava vs. State of M.P.[(1999) 7 SCC 120], State of Punjab vs. Dayanand Medical College and Hospital (AIR 2001 SC 3006 ), State of M.P. vs. Gopal D.Tirthani (AIR 2003 SC 2952) and M.P. Public Service Commission v. Navnit Kumar Potdar[(1994) 6 SCC 293].
17(d). He would also submit that this is a policy decision which has been taken by the Government in the year 2009, which cannot be challenged. According to him, in none of the cases, the contents of prospectus is challenged or the policy decision is challenged as perverse and in such circumstances, this Court cannot interfere at this stage when the admission process is completed. He would rely upon the judgment of the Supreme Court in S.Karthikeyan vs. Teachers' Recruitment Board (2007 (3) CTC 814) apart from the judgment of this Court in 2004 (5) CTC 704.
17(e). He would submit that there is no legitimate expectation when there is a policy decision by the Government and when after completion of postgraduate course a doctor is posted in Taluk Hospital, there is no rural service thereafter. He would rely upon the judgments in Sethi Auto Service Station vs. Delhi Development Authority [(2009) 1 SCC 180] and Ram Pravesh Singh vs. State of Bihar [(2006) 8 SCC 381] to substantiate his contention that legitimate expectation does not give any legal right to any person. He would also submit that there cannot be a direction relying upon the judgments in Union of India vs. P.Rajeshwaran [(2003) 9 SCC 294] and [AIR 1967 SC 993].
17(e). He contents that the present system has been formulated as a policy after considering the representation from the Doctors Association that giving more weightage to rural service is unjust. He submits that by experience at taluk level hospitals, the doctors acquired merit and that should be given weightage for the purpose of admission to super speciality courses.
18. It is the submission on behalf of the Medical Council of India that postgraduate regulations for super speciality courses were framed in the year 2000. Learned counsel appearing for the Medical Council of India would rely upon various conditions in the Regulations to substantiate his contention that basically it is academic merit which should be taken into consideration for admission and academic merit is theoretic and scholastic in nature. His submission is that Medical Council of India Regulations are statutory and they are to be followed, relying upon the judgment of the Supreme Court in M.C.I. vs. State of Karnataka [(1998) 6 SCC 131].
18(a). In the affidavit filed by the Medical Council of India it is stated that the Medical Council of India is a statutory authority under the Indian Medical Council Act, 1956 to regulate medical education in the country. The rules framed by the Medical Council of India are statutory in nature. For that, MCI v. State of Karnataka [(1998) 6 SCC 131] and Dr.Preeti Srivastava v. State of M.P. and Ors. [(1999)7 SCC 120] are referred to.
18(b). It is the case of the Medical Council of India that the regulations for postgraduate courses have been framed based on various judgments of the Supreme Court. The Postgraduate Medical Education Regulations, 2000 have been approved by the Government of India on 22.5.2000 and the same have been made applicable to super speciality courses and published in Gazette dated 7.10.2000. It provides for duration of postgraduate courses and selection of postgraduate course students. It also says about the period of training for Doctor of Medicine (DM) and M.Ch. The qualification has also been prescribed for M.Ch. and D.M. apart from M.D. Course.
18(c). It is also stated in the counter affidavit that the Government of India has given time schedule for admission to medical and dental courses, that is, the date up to which students can be admitted viz., 30th September. It is stated in the counter affidavit that when the petitioner in one of the writ petitions appearing for M.Ch.(Gastero Enterology) has secured second mark out of 137 students who have taken part and it is the petitioners' case that marks awarded for experience are without any proper guidelines and that there is ambiguity and the direction given by the Medical Council of India has been violated. It is the case of the Medical Council of India that all admissions in medical colleges, in super speciality courses is to be made in terms of Medical Council of India Regulations and no admission can be made without fulfilling the minimum eligibility criteria in terms of Medical Council of India Postgraduate Regulations, 2000.
18(d). It is the case of the Medical Council of India that the merit for admission to super speciality course is only on the marks in the academic qualifications in the last three years and therefore awarding of marks for experience without any rational nexus to the object is illegal. The Medical Council of India has also referred to the judgments in MCI v. Madhu Singh & Ors [(2002) 7 SCC 258] and Shefali Nandwani v. State of Haryana [(2002) 8 SCC 152]. The admission to super speciality courses, according to the Medical Council of India, should be based on Medical Council of India Regulations, 2000.
19. It is the submission of Mr.R.Sureshkumar, learned counsel appearing for the selected candidates who have been impleaded as respondents in three writ petitions that they have high academic proficiency. He would submit that as far as in W.P.No.14855 of 2009 is concerned, the selected candidate/4th respondent applied for M.Ch. (Surgical Gastro Enterology) after completing M.B.B.S. and FRCS in December, 2000 and he joined as Trainee Surgeon and worked as Honourary Trainee Surgeon from 2001 to 2003. He worked from 2003 to 2008 in U.K. and thereafter, he has been working in Rajarathnam Institute of Gastro Intestinal Diseases, Chennai. He further submits that the selected candidate had rich experience and he scored 72 marks out of 90 marks in the entrance examination and nine marks were added against experience for nine years and totally he got 81 marks and in fact, he is a meritorious candidate and he has rich experience.
20. As far as the 4th respondent in W.P.No.16226 of 2009 is concerned, the contention of the learned counsel is that he completed postgraduate course in the year 2005 and working as Senior Resident in Paediatrics Department in Stanley Medical College Hospital and he got four years experience and for that he was given four marks out of 10. According to him, in the entrance examination he got 76.50 marks out of 90 marks and totally he got 80.50 marks and even on merit among service candidates he stands at third place out of six seats and in the rank list third rank and therefore, absolutely there is no grievance to the petitioner and the 4th respondent is entitled for admission.
21. In respect of third respondent in W.P.No.15355 of 2009, it is submitted that the third respondent worked as Tutor in Government Kilpauk Medical College and he has been continuously practising and he also worked in the Primary Health Centre at Kancheepuram from 1999 to 2002. In the entrance examination he got 60.75 marks out of 90 marks and adding three marks for experience, totally he secured 63.75 marks. It is his submission that the petitioner has no locus standi to file the writ petition since the petitioner has neither challenged the order of the Government nor the prospectus, nor the policy of the Government. He would rely upon the judgments in Madan Lal vs. State of J & K [(1995) 3 SCC 486] and Sri Ram A.(minor) vs. State of Tamil Nadu [2005 WLR 691].
21(a). He submits that the binding nature of prospectus is well established by the judgment in Dr.M.Vennila vs. Tamil Nadu Public Service Commission [2006 WLR 574]. He would submit that the petitioner is estopped from challenging the prospectus having participated in the selection process and relied upon the judgment in Indian Airlines Limited vs. K.Narayanan (2007 (5) MLJ 648). He would submit that it is not permissible to exclude or include a privilege by the direction of the Court as it is a legislative function of the State and rely upon the judgment in Dhananjay Malik vs. State of Uttaranchal (2008 (4) SCC 171 ) apart from the judgment in Dr.S.Rajesh vs. The State of Tamil Nadu (2009 WLR 223).
21(b). When a person after completing the professional course in medicine is practising as a doctor, it cannot be stated that such person would be keeping quiet and experience should not be treated as merit. The experience has been treated as merit for nearly 25 years. For that he would rely upon Dr.A.Rathnaswamy vs. Director of Medical Education (1986 WLR 207). He would also refer to various provisions of the prospectus to the effect that the prospectus is very clear and having understood the terms of the prospectus the petitioner has participated in the selection process.
21(c). It is his submission that the prospectus is not against the Medical Council of India Regulations and 20% seats reserved for rural area itself has been held valid. What is given in the present case is mark for experience. It is open to the Government to identify by giving importance to the experience and inasmuch as there is no scope for arbitrariness, there is no possibility for this Court to interfere. In so far as the selected candidates are concerned, their selection is purely on merit, there is no necessity to interfere at this stage in these writ petitions. He would submit that at least for this academic year, interference is not warranted.
22. With regard to the material facts which are stated above regarding the marks obtained by the petitioners as well as respective selected candidates/respondents, there is no much dispute. The main dispute which has been raised in the writ petitions as contended by the learned senior counsel for the petitioners relates to awarding of experience marks after completion of postgraduate courses in medicine viz., one mark for every completed year to be added in respect of both service and non-service candidates subject to maximum 10 marks. The awarding of marks against experience is questioned on the ground that there are no proper guidelines for the purpose of ascertaining the actual merit and therefore, in the context of accepted principle laid down by the Hon'ble Apex Court that merit alone shall be the criterion for admission to super speciality courses, the awarding of marks against experience is without any rational nexus to the object sought to be achieved and` it would be a reservation diluting the merit.
23. On the other hand, it is the contention on the side of the respondents that it would not amount to reservation and it is while ascertaining merit, experience plays an important role for a professional person like, doctor and therefore, giving weightage to the experience acquired by the doctor after postgraduate course cannot be deemed to be a dilution of merit. However, it is the contention on behalf of the selected candidates that the selected candidates/respondents stand above the respective petitioners even on merit and there is no necessity to interfere with the selection process at least for this year on the basis of marks awarded against experience.
24. Before adverting to the actual issue involved, it is relevant to note some of the facts other than the facts which have already been elicited.
25. It is not in dispute that even before the prospectus for the year 2009-10 for super speciality courses was issued, out of the total marks, 90 marks were given for entrance examination and 10 marks were given for experience. In addition to that, rural marks were added in respect of service candidates up to the maximum of 10 marks based on the length of service rendered in the Primary Health Centres. The relevant portion of the prospectus for the year 2007-08 is as follows;
"49.MERIT LIST:
The merit list for each discipline of the Higher Speciality course will be prepared by computing the entrance examination marks and experience marks, which will be calculated to a maximum of 100 (Entrance Examination marks to a maximum of 90 + Experience Marks to a maximum of 10). Rural Services Marks will be added to the total aggregate marks of the service candidates."
26. In effect, in respect of candidates with rural service, they were given maximum 10 marks in addition to 100 marks already fixed, viz., 90 marks for entrance examination and 10 marks for experience, that is, one mark for each year after completion of postgraduate course subject to the maximum of 10 marks. Therefore, experience marks were also available for super speciality courses in addition to rural service marks. It is for the year 2009-10, based on the report of the Additional Director of Medical Education dated 22.5.2009, the Government passed G.O.(D) No.612, Health and Family Welfare (MCA I) Department dated 25.5.2009 propounding a draft policy in the form of prospectus for super speciality courses for the year 2009-10. The G.O. by which the policy has been framed is as follows:
"G.O.(D).No.612 Health and Family Welfare (MCA1)Department dated 25.5.2009 Order:
The Additional Director of Medical Education/Secretary, Selection committee in her letter read above has sent the draft policy/prospectus for admission to Higher Speciality courses for the year 2009-10 with certain modifications and also with changes of clauses for easy accessibility and requested to approve the same.
2. The Government after careful consideration accept the modifications suggested by the Additional Director of Medical Education/Secretary, Selection Committee, Chennai and approve the policy/prospectus for admission of the candidates to Higher Speciality courses 2009-10 with modifications/changes suggested by the Additional Director of Medical Education/Secretary, Selection Committee. A copy of the approved policy/prospectus for admission of candidates to Higher Speciality courses for the year 2009-10 is annexed to this order."
27. In the proposed prospectus in the form of policy as per the said G.O. dated 25.5.2009, the 'merit list' is stated in clause 7 as follows:
"VII. MERIT LIST:
41. Two merit list 1) open merit list and 2) service merit list will be published.
Open merit list (for both service and non-service) for each discipline of the Higher Speciality course will be prepared by computing the entrance examination marks and experience marks, which will be calculated to a maximum of 100 (Entrance Examination Marks to a maximum of 90 + Experience Marks to a maximum of 10).
Service merit list wil be published seperately.
42. a) the Individual Mark (Service/Non-service) is calculated by computing the marks secured by the Candidate in the Entrance Examination and Experience Marks of one mark for each year after completion of the P.G.Degree which is calculated from the last date of the month of passing Examination to 30.06.2009. (E.g. If a candidate scores 50 Marks out of 90 marks in Entrance Examination and has completed Two Years after P.G.Degree as on 30.06.2008, the candidate's total Aggregate Mark will be 50+2=52).
b) Fractional values of an year will not be counted for awarding marks for experience."
28. The schedule issued by the Government in respect of Doctor of Medicine (DM) regarding Cardiology and M.Ch. also conforms to the status position and the same is as follows:
SCHEDULE: "C"
D.M. (DOCTOR OF MEDICINE) for which candidates must possess recognised degree of M.D. (or its equivalent recognised degree) in the subject shown against them.
Sl.No. Area of Specialisation Prior Requirement 1 Cardiology MD (Medicine) MD (Paediatrics) 2 Clinical Hematology MD (Medicine) MD (Pathology) MD (Paediatrics) MD (Biochemistry) 3 Clinical Pharmacology MD (Pharmacology) 4 Endocrinology MD (Medicine) MD (Paediatrics) MD (Biochemistry) 5 Immunology MD (Medicine) MD (Pathology) MD (Microbiology) MD (Paediatrics) MD (Biochemistry) MD (Physiology) 6 Medical Gastroenterology MD (Medicine) MD (Paediatrics) 7 Medical Genetics MD/MS in any subject 8 Medical Oncology MD (Medicine) MS (Radiotheraphy) MD (Paediatrics) 9 Neonatology MD (Paediatrics) 10 Nephrology MD (Medicine) MD (Paediatrics) 11 Neurology MD (Medicine) MD (Paediatrics) 12 Neuro-radiology MD (Radio-Diag.) SCHEDULE: "D"
D.Mch.(Master of Chirurgie) for which candidates must possess recognised degree of M.S. (or its equivalent recognised degree) in the subjects shown against them.
Sl.No. Area of Specialisation Prior Requirement 1 Cardio vascular & Thoracic Surgery MS (Surgery) 2 Urology MS (Surgery) 3 Neuro-Surgery MS (Surgery) 4 Paediatrics Surgery MS (Surgery) 5 Plastic & Reconstructive Surgery MS (Surgery) 6 Surgical Gastroenterology MS (Surgery) 7 Surgical Oncology MS (Surgery) MS (ENT) MS (Orthopaedics) MD (Obst.&Gynae.) 8 Endocrine Surgery MS (General Surgery)
29. In M.P. Public Service Commission v. Navnit Kumar Potdar [(1994) 6 SCC 293] while deciding about the minimum qualification for the Presiding Officer, Labour Court, it was held that long experience of an advocate becomes more important, thereby upholding the experience in professional courses like, law and medicine. The relevant portion is as follows:
" 12. On behalf of the respondents, it was pointed out that there is no presumption that an advocate having seven and half years of experience will be more suitable for the post of Presiding Officer of the Labour Courts than an advocate having only five years of experience because it all depends on the personal merit of the candidate concerned. It is true that it has been found that sometimes the persons with lesser years of experience and practice have proved to be better advocates and they excel in profession. The success in profession is not necessarily linked with the years of practice. But that may be an exception. Normally, it is presumed that with longer experience an advocate becomes more mature. In any case, this fixing the limit at seven and half years instead of five years of the practice for purpose of calling the interview cannot be said to be irrational, arbitrary having no nexus with the object to select the best amongst the applicants."
Therefore, by the said proposed policy, the Government has given up the additional 10 marks for rural service while continuing the experience marks to the maximum of 10. In other words, in 2009-10 also, the experience marks continue as it was earlier while the rural marks have been dispensed with. The reason adduced is that 10 marks for experience has been given as it was earlier for every candidate who has completed his postgraduate course in medicine at the rate of one mark per year and the rural service marks of 10 have been dispensed with for the reason that after completion of postgraduate course in medicine, the doctors are not posted in primary health centres and they are posted in taluk Headquartes and cities and therefore, there is no necessity to take the rural service into consideration for admission to super speciality courses. However, it is not in dispute that for admission to postgraduate courses in the year 2009-10 in medicine the experience in rural service is taken into consideration.
30. The writ petitioner in W.P.No.15355 of 2009 who got admitted in postgraduate course in M.S.(General Surgery) in the year 2009, by that time, had put in three years of experience in public health centres, viz., rural service and that was not taken into consideration at the time of his admission to M.S.(General Surgery) in 2003, which is not in dispute. That was because, at that time, the rural service was not as a matter of policy taken into consideration for postgraduate course admission in medicine. In 2009-10, when the said petitioner applied for super speciality course, unfortunately, for him the experience in rural service, which was taken into account for admission to super speciality courses up to 2008-09 has been dispensed with in the year 2009-10 due to the above said policy and therefore, for super speciality course also, he has been deprived of the right of consideration of rural service for three years, while he has been admittedly given two marks for service after postgraduate course in the admission to super speciality course for the year 2009-10.
31. Law is well settled that inclusion or exclusion of a privilege is for the legislature to decide and not for the Court to legislate, as it was held in SRI RAM.A (MINOR) REP. BY HIS FATHER AND NATURAL GUARDIAN MR.P.ARUMUGAM ..vs.. STATE OF TAMIL NADU AND ANOTHER (2005 WLR 691), wherein D.Murugesan,J. held as follows:
" 9. Law is well settled that this Court, in exercise of its powers, shall not enter upon to direct legislation in a particular subject, as legislation on a subject is the exclusive jurisdiction of the Legislature, as has been held in various judgments, more particularly, in "Miss.Romini Susan Kurian ..vs.. State of A.P.and others (AIR 1992 A.P.380)", in "Midhuna Nathan ..vs.. State of Tamil Nadu rep.by its Secretary, Department of Health, Fort St.George, Madras & Seven others (1995 Writ L.R.851)" and in "G.Sumathi ..vs.. The Director of Medical Education, Madras and others (AIR 1993 Madras 328)". It will not be within the jurisdiction of the Court either to amend, alter or to add something into the prospectus, as it would be the function of the State in exercise of the powers under Article 162 of the Constitution of India. Either the challenge or the direction for inclusion or grandchildren of Freedom Fighters, ex-servicemen has no legs in the context that the petitioners cannot firstly insist the Government to identify the source of admission under special category in a particular manner or request the Court to direct the Government to identify and earmark certain number of seats for a particular special category of persons".
32. Further, if the Government in its wisdom decides about certain concessions to be given or concessions already given in the previous years to be withdrawn, the same cannot be expected to be followed as a matter of right, unless there is arbitrariness in the said process, and that was the view of the Hon'ble Apex Court in K.V.Rajalakshmiah Setty vs. State of Mysore [AIR 1967 SC 993] wherein it was held as follows:
" 12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. Nodoubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession, but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. The indulgences shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, ad hoc indulgence should be meted out to the appellants before us."
Therefore, the contention of the learned senior counsel Mr.R.Muthukumarasamy appearing for the petitioner in W.P.No.15355 of 2009 that rural service should be taken into consideration for the purpose of admission to super speciality courses, is unsustainable since the petitioner cannot as a matter of right claim that his rural service has to be taken into consideration for admission.
33. After the policy was made by the Government by way of above G.O. dated 25.5.2009, it is seen that the Government has issued notification on 29.5.2009 calling for applications for admission to super speciality courses by the sale of application form and prospectus between 3.6.2009 and 12.6.2009 stating that the last date for receipt of filled in application is 12.6.2009. The writ petitioners based on the said advertisement in newspapers have bought the prospectus and submitted their applications by 10.6.2009. It is stated that the petitioner in W.P.No.14855 of 2009 submitted his application on 3.6.2009 while the petitioner in W.P.No.16226 of 2009 submitted his application on 10.6.2009 and the petitioner in W.P.No.15355 of 2009 submitted his application on 3.6.2009. Knowing very well about the contents of prospectus in the respective clauses, the petitioner applied for the courses. It cannot be said that petitioners were not aware that experience marks after postgraduate course would be taken into consideration for service candidates and rural service would not be taken into consideration for admission to super speciality courses. Admittedly, after knowing about the contents of the prospectus, none of the petitioners approached this Court challenging the respective clauses of the prospectus. On the other hand, acting on the terms and conditions of the prospectus, they submitted their applications and in fact, they participated in the entrance examination which was held on 26.7.2009, the result of which was published on 29.7.2009. It was only after finding that the petitioners' names were not in the list, the petitioners approached this Court by filing the above said writ petitions in August, 2009.
34. Admittedly, the Apex Court fixed the cut-off date for completion of admission to medical courses as 30.9.2009. The petitioners have neither challenged the Government Order by which the policy has been evolved for the year 2009-10, nor the directions in the prospectus and the writ petitions have been filed for directions as stated above.
35. The binding nature of the contents of prospectus and instructions has been upheld in no uncertain terms by this Court by P.Sathasivam,J.(as he then was) and J.A.K.Sampathkumar,J. in Dr.Vennila v. State of T.N. (2006 WLR 574) and the relevant portions of the judgment is as follows:
" 16. Now, let us consider whether the requirements as stated in the Notification/Information Brochure are to be strictly complied with or not and in other words, whether they are mandatory ?
17. ....
18. ....
19. The principle that the prospectus is binding on all persons concerned has been laid by the Supreme Court in Punjab Engineering College, Chandigarh ..vs.. Sanjay Gulati (AIR 1983 SC 580 = 1983 (96) L W 172 S.N.). Following the same, a Division Bench of this Court has also observed in Rathnaswamy, Dr.A. ..vs.. Director of Medical Education (1986 W L R 207) that the rules and norms of the prospectus are to be strictly and solemnly adhered to. The same view is also taken by another Division Bench of this Court in Nithyan P. and S.P.Prasanna ..vs.. State of Tamil Nadu (1994 WLR 624). The same principle is reiterated in the case of Dr.M.Ashiq Nihmathullah ..vs.. The Government of Tamil Nadu and others reported in 2005 WLR 697. It is clear that the prospectus is a piece of information and it is binding on the candidates as well as on the State including the machinery appointed by it for identifying the candidates for selection and admission".
36. The proposition that when a candidate consciously takes part in selection process by attending oral interview, after finding that he has not emerged successfully, he is estopped from contending that the interview process is unfair as was held by the Apex Court in Madanlal v. State of J.& K. [(1995) 3 SCC 486] in the following words:
" 9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this state there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla ..vs.. Akhilesh Kumar Shukla (1986 Supp SCC 285 : 1986 SCC (L&S) 644 : AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee".
37. That was also the view of the Supreme Court in DHANANJAY MALIK AND OTHERS ..vs.. STATE OF UTTARANCHAL AND OTHERS [(2008) 4 SCC 171], of course in respect of service law wherein it was held as follows:
" 7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal ..vs.. State of J & K ((1995) 3 SCC 486) this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.
9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10. In a recent judgment in Marripati Nagaraja ..vs.. Govt.of A.P.((2007) 11 SCR 506), SCR at p.516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process".
38. Even in the judgment relied upon by the learned senior counsel for the petitioners Mr.C.Selvaraju, in Raj Kumar vs. Shakti Raj [(1997) 9 SCC 527], the Supreme Court held that a person who has consciously taken part in selection process and remained unsuccessful cannot challenge the selection process and the rule of estoppel would apply. It was also held that in cases of glaring illegalities, such estoppel would not stand in the way of removing such illegalities. The relevant paragraph of the judgment is as follows:
" 16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law."
39. Relying upon the judgment of the Supreme Court in Union of India v. N.Chandrasekaran [(1998) 3 SCC 694] and quoting a portion of the said judgment, the Division Bench of this Court consisting of P.Sathasivam,J.(as he then was) and N.Paul Vasanthakumar,J. in Indian Airlines Limited v. K.Narayanan (2007 (5) MLJ 648) laid down with approval the law that a candidate who took part in selection process is estopped from challenging the same. The Hon'ble Judges in great detail explained the various decisions on the subject and the same is as follows:
" 24. The learned counsel for the management is also right in contending that the first respondent in W.A.No.2077 of 2005 having taken part in the selection process, is estopped from challenging the notification inviting application, mode of selection, etc., after his participation and non-selection as held by the Honourable Supreme Court in the decision reported in Union of India and another vs. N.Chandrasekharan and Others AIR 1998 SC 795 : (1998) 3 SCC 694, wherein in paragraph 13 it is held thus, " 13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Deprtmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproprotionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report. ....."
25. The principle of estoppel is considered by the Honourable Supreme Court in various decisions.
(i) In the decision reported in I.L.Honnegouda ..vs.. State of Karnataka and Others AIR 1978 SC 28 the Honourable Supreme Court held thus, "In view of our judgment in Appeals Nos.883 and 898 to 905 of 1975 :(Reported in AIR 1977 SC 876) which has just been delivered and the fact that the appellant acquiesced to the 1970 Rules by applying for the post of the Village Accountant, appearing before the Recruitment Committee for interview in 1972 and 1974 and taking a chance of being selected, the present appeal which questions the constitutionality of Rules 4 and 5 of the 1970 Rules cannot be allowed. It is accordingly dismissed but without any order as to costs".
(ii) In Om Prakash Shukla ..vs.. Akhilesh Kumar Shukla AIR 1986 SC 1043 : 1986 (Supp) SCC 285 in paragraph 24, the Honourable Supreme Court held thus, "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination".
(iii) In Madan Lal ..vs. State of Jammu & Kashmir AIR 1995 SC 1088 : (1995) 3 SCC 486, it is held thus, "9. ....The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla ..vs.. Akhilesh Kumar Shukla AIR 1986 SC 1043 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner".
(iv) The above said decisions of the Honourable Supreme Court were followed by the Full Bench of this Court in the decision reported in R.Murali ..vs.. R.Kamalakannan AIR 2000 Mad 174 (FB):(2000) 1 MLJ 1 and in paragraph 55, question No.2 was answered thus at p.18 of MLJ:
"Question No.2: We hold that writ petitioners are not entitled to challenge the selection after having participated in the written examination on the principle of estoppel".
40. Again, narrating the entire case laws on the subject, N.Paul Vasanthakumar,J. in Dr.S.Rajesh v. State of T.N. (2009 WLR 223) ultimately held as follows:
" 19. The above referred judgments are followed in a recent decision of a Division Bench of this Court in (2007) 5 MLJ 648 (Indian Airlines Ltd ..vs.. K.Narayanan), wherein the contention of the management therein that person participated in selection in terms of the notification are estopped from challenging the mode of selection or the conditions contained in the instructions/rules was upheld".
41. In such circumstances, I am of the considered view that the petitioners having taken part in the admission process consciously knowing about the contents of the prospectus and some of the petitioners having got benefits of the service marks also, have chosen to file the present writ petitions for direction in effect challenging the validity of the contents of the prospectus. Without challenging the policy of the Government in the Government Order as stated above they cannot be permitted to question the contents of the prospectus which forms part of the policy of the Government. On this simple ground of estoppel and locus standi, the writ petitions are liable to be dismissed.
42. Coming to the Medical Council of India Regulations, it is no doubt true that the regulations framed by the Medical Council of India are statutory in nature, as it was held by the Supreme Court in State of Punjab v. Dayanand Medical College and Hospital (AIR 2001 SC 3006). In that judgment, the Supreme Court was dealing with the admission to P.G. Medical courses where the State of Punjab reserved 60% of seats for candidates in service leaving 40% of seats for all candidates who are residents of the State of Punjab.
While holding that such policy of reservation is that of the Government and not of the Medical Council of India, the Supreme Court held that the State is better placed to exercise such power than any other authority. When admission to P.G. Courses was made in violation of the Medical Council of India Regulations which contemplates a minimum of 40% marks in relevant subjects and the State Government reduced the marks below 40%, it was held that the University or the Government cannot dilute the standards by fixing the minimum marks lower than what is set out by the Medical Council of India. The relevant portion of the judgment is as follows:
" 17. It is clear that in respect of subjects other than Anatomy, Physiology, Biochemistry, Pharmacology, Pathology, Microbiology, Forensic Medicine and Social and Preventive Medicine at least 40% of the marks will have to be obtained in order to be eligible for admission and in respect of other subjects there is no such condition at all. In the counter-affidavit filed in the High Court, it is stated that the percentage of marks has been reduced below 40% for the basic subjects like Anatomy, Physiology and Pharmacology because the candidates of higher merit are not opting for these subjects and as such the postgraduate seats in Departments of Anatomy, Physiology and Pharmacology keep lying vacant and thus leading to an acute shortage of teachers in these Departments. Further, the condition of 50% marks in the entrance test was reduced to 40% because 80% of the seats reserved for PCMS doctors remained unfilled because most of them could not secure 50% marks in PGET due to the fact that they do not get academic support in rural areas. It is submitted that the postgraduate entrance examination is held for those who have already passed in MBBS examination by securing at least 50% marks and, therefore, the candidates who had not secured 50% in the postgraduate entrance examination cannot be declared to be filled (sic) in MBBS. The lowering of the marks to less than 50% has the twin objective of safeguarding the interests of weaker sections of the Scheduled Castes and Backward Classes and to meet the constitutional obligation. We are afraid, the approach of the State of Punjab in this regard results in stultifying the logic. What is contended is that suitable candidates are to be selected from amongst the eligible candidates and in that regard an entrance test is being held. When such an entrance test is held, a prescription has been made by the Medical Council of India fixing a standard in terms of Entry 66 List I of the Seventh Schedule to the Constitution and which cannot be diluted at all as has been held in a series of decisions including Dr Preeti Srivastava case, Dr Narayan Sharma v. Dr Pankaj Kumar Lehkar and Medical Council of India v. State of Karnataka. Therefore, it is not open to the university or the Government to dilute that standard by fixing marks lower than what is set out by the Medical Council of India. If they had any difficulty they ought to have approached the Medical Council of India for fixing of appropriate standards in that regard. The State Government could not unilaterally frame a scheme reducing the standard in violation of the terms of the Regulations framed by the Medical Council of India, which is repeatedly stated by this Court to be the repository of the power to prescribe standards in postgraduate studies subject, of course, to the control of the Central Government as envisaged in the Act constituting the Council.
43. In that case, the Supreme Court referred to clause 9 of the Medical Council of India Regulations 2000 which is as follows:
" 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:
(i)On the basis of merit as determined by a 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
(ii)On the basis of merit as determined by a centralised competitive test held at the national level; or
(iii)On the basis of the individual cumulative performance at the first, second and third MBBS examinations, if such examinations have been passed from the same university; or
(iv)Combination of (i) and (ii) Provided that wherever entrance test for postgraduate admission is held by a state government or a university or any other authorised examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50 percent for general category candidates and 40 percent for the candidates belonging to Schedule Castes, Schedules 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 and the remaining fifty percent by the management of the institution on the basis of merit."
While clause 9 of the Medical Council of India Regulation 2000 speaks about the selection of P.G. students, there are no other provisions dealing with the selection of super speciality courses. It is true that clause 10 speaks about the period of training for various P.G. courses in which D.M. as well as M.Ch. course has been mentioned to the effect that the period of training for obtaining the said degrees shall be three completed years after obtaining M.D. /M.S. Degree. Except the said clause, there is no other indication in the Medical Council of India Regulations, 2000 about the selection to super speciality courses.
44. In Preeti Srivastava (Dr) vs. State of M.P., (AIR 1999 SC 2894), the Constitution Bench of the Supreme Court dealt with the reservation in appointment as per Article 16(4) of the Constitution of India, apart from reservation relating to post graduate course admission in medical education under Article 15. The Supreme Court was dealing with Article 15(4) of the Constitution of India at the stage of admission to postgraduate medical courses where lesser qualifying marks or no marks were provided for members of SC/ST in the following words:
"20. We are, however, not directly concerned with the question of reservations at the postgraduate level in Medicine. We are concerned with another special provision under Article 15(4) made at the stage of admission to the postgraduate medical courses, namely, providing for lesser qualifying marks or no qualifying marks for the members of the Scheduled Castes and Scheduled Tribes for admission to the postgraduate medical courses. Any special provision under Article 15(4) has to balance the importance of having, at the higher levels of education, students who are meritorious and who have secured admission on their merit, as against the social equity of giving compensatory benefit of admission to the Scheduled Caste and Scheduled Tribe candidates who are in a disadvantaged position. The same reasoning which propelled this Court to underline reasonableness of a special provision and the national interest in giving at the highest level of education, the few seats at the top of the educational pyramid only on the basis of merit and excellence, applies equally to a special provision in the form of lower qualifying marks for the backward at the highest levels of education.
45. It was, in that context, the Supreme Court denounced the concept of reservation for admission in super speciality courses as follows:
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 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.
46. In fact, in the said paragraph, the Supreme Court has clearly approved the importance of experience for high level intelligent understanding of medical knowledge or skill. In the context of constitutionality of the State to make law in the form of norms for admission the Supreme Court has taken note of Entry 66 of List-I and Entry 25 of List III (concurrent list) and in the context of standard of education held as follows:
"35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.
Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:
25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows:
66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available to each student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;
(7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.
37. While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. If the students are of a high calibre, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the calibre of the students is poor or they are unable to follow the instructions being imparted, the standard of teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach the levels of education and training which can be attained with a bright group. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been considered essential at the levels of higher university education, particularly when the training to be imparted is a highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their postgraduate courses."
47. The Supreme Court in categorical terms denounced the law laid down earlier that the power of Medical Council of India under section 20 of the Medical Council of India Act, 1956 in prescribing minimum standards for medical education in India at postgraduate level was only advisory and held that it is mandatory and binding on the Universities in the following terms:
" 55. We do not agree with this interpretation put on Section 20 of the Indian Medical Council Act, 1956. Section 20(1) (set out earlier) is in three parts. The first part provides that the Council may prescribe standards of postgraduate medical education for the guidance of universities. The second part of sub-section (1) says that the Council may advise universities in the matter of securing uniform standards for postgraduate medical education throughout. The last part of sub-section (1) enables the Central Government to constitute from amongst the members of the Council, a Postgraduate Medical Education Committee. The first part of sub-section (1) empowers the Council to prescribe standards of postgraduate medical education for the guidance of universities. Therefore, the universities have to be guided by the standards prescribed by the Medical Council and must shape their programmes accordingly. The scheme of the 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. For example, the medical qualifications granted by a university or a medical institution have to be recognised under the Indian Medical Council Act, 1956. Unless the qualifications are so recognised, the students who qualify will not be able to practise. Before granting such recognition, a power is given to the Medical Council under Section 16 to ask for information as to the courses of study and examinations. The universities are bound to furnish the information so required by the Council. The Postgraduate Medical Committee is also under Section 17, entitled to appoint Medical Inspectors to inspect any medical institution, college, hospital or other institution where medical education is given or to attend any examination held by any university or medical institution before recommending the medical qualification granted by that university or medical institution. Under Section 19, if a report of the Committee is unsatisfactory the Medical Council may withdraw recognition granted to a medical qualification of any medical institution or university concerned in the manner provided in Section 19. Section 19-A enables the Council to prescribe minimum standards of medical education required for granting recognised medical qualifications other than postgraduate medical qualifications by the universities or medical institutions, while Section 20 gives a power to the Council to prescribe minimum standards of postgraduate medical education. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council Act. We, therefore, disagree with and overrule the finding given in Ajay Kumar Singh v. State of Bihar to the effect that the standards of postgraduate medical education prescribed by the Medical Council of India are merely directory and the universities are not bound to comply with the standards so prescribed.
48. Ultimately, the Supreme Court has held that the reservation in the context of Articles 15(4) and 16(4) of the Constitution of India read with Article 335 is not permissible in the following words:
67. The ambit of special provisions under Article 15(4) has already been considered by us. While the object of Article 15(4) is to advance the equality principle by providing for protective discrimination in favour of the weaker sections so that they may become stronger and be able to compete equally with others more fortunate, one cannot also ignore the wider interests of society while devising such special provisions. Undoubtedly, protective discrimination in favour of the backward, including Scheduled Castes and Scheduled Tribes is as much in the interest of society as the protected groups. At the same time, there may be other national interests, such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests.
68. In the case of Dr Jagadish Saran v. Union of India this Court observed that at the highest scales of speciality, the best skill or talent must be hand-picked by selection according to capability. Losing a potential great scientist or technologist would be a national loss. That is why the Court observed that the higher the level of education the lesser should be the reservation. There are similar observations in Dr Pradeep Jain v. Union of India. Undoubtedly, Dr Pradeep Jain v. Union of India did not deal with reservation in favour of the Scheduled Castes and the Scheduled Tribes. It dealt with reservation in favour of residents and students of the same University. Nevertheless it correctly extended the principle laid down in Dr.Jagadish Saran v. Union of India to these kinds of reservation also, holding that at the highest levels of medical education excellence cannot be compromised to the detriment of the nation. Admissions to the highest available medical courses in the country at the superspeciality levels, where even the facilities for training are limited, must be given only on the basis of competitive merit. There can be no relaxation at this level.
69. Indra Sawhney v. Union of India has also observed that in certain positions at the highest level merit alone counts. In specialities and superspecialities in Medicine, merit alone must prevail and there should not be any reservation of posts. The observations in Indra Sawhney v. Union of India were in respect of posts in the specialities and superspecialities in Medicine. Nevertheless, the same principle applies to seats in the specialities and superspecialities in Medicine. Moreover, study and training at the level of specialities and superspecialities in Medicine involve discharging the duties attached to certain specified medical posts in the hospitals attached to the medical institutions giving education in specialities and superspecialities. Even where no specific posts are created or kept for the doctors studying for the superspecialities or specialities, the work which they are required to do in the hospitals attached to these institutions is equivalent to the work done by the occupants of such posts in that hospital. In this sense also, some of the considerations under Article 16(4) read with Article 335 rub off on admissions of candidates who are given seats for speciality and superspeciality courses in Medicine. Even otherwise under Article 15(4) the special provisions which are made at this level of education have to be consistent with the national interest in promoting the highest levels of efficiency, skill and knowledge amongst the best in the country so that they can contribute to national progress and enhance the prestige of the nation. The same view has been upheld in Fazal Ghafoor (Dr) v. Union of India and Mohan Bir Singh Chawla v. Panjab University."
49. The provisions of the Constitution which were construed by the Supreme Court, viz., Articles 15(4) and 16(4) are as follows:
" Article 15.Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-
(1)to (3) xxxx (4)Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."
Article 16. Equality of opportunity in matters of public employment.-
(1)to (3) xxx (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
Those provisions of the Constitution were construed in the matter of reservation and dilution of merit wherein cut off percentage of marks for reserved candidates were sought to be reduced for admission to postgraduate medical education.
50. In State of M.P. and Others v. Gopal D.Tirthani (AIR 2003 SC 2952) the Supreme Court held that allocation of 20% of seats by the State of M.P. in post-graduation in the universities for in service candidates does not amount to reservation. The Supreme Court has also held that there can be only one common entrance examination for determining the eligibility for post-graduation and the relevant portion of the judgment is as follows:
" 25. The eligibility test, called the entrance test or the pre-PG test, is conducted with dual purposes. Firstly, it is held with the object of assessing the knowledge and intelligence quotient of a candidate whether he would be able to prosecute post-graduate studies if allowed an opportunity of doing so; secondly, it is for the purpose of assessing the merit inter se of the candidates which is of vital significance at the counselling when it comes to alloting the successful candidates to different disciplines wherein the seats are limited and some disciplines are considered to be more creamy and are more coveted than the others. The concept of a minimum qualifying percentage cannot, therefore, be given a compete go-by. If at all there can be departure, that has to be minimal and that too only by approval of experts in the filed of medical education, which for the present are available as a body in the Medical Council of India.
26. The Medical Council of India, for the present, insists, through its Regulations, on a common entrance test being conducted whereat the minimum qualifying marks would be 50%. The State of Madhya Pradesh must comply with the requirments of the Regultions framed by the Medical Council of India and hold a common entrance test even if there are two separate channels of entry and allow clearance only to such canidates who secure the minimum qualifying marks as prescribed by the MCI Regulations. If the State has a case for making a departure from such rule or for carving out an exception in favour of any classification then it is for the State to represent to the Central Government and/or Medical Council of India and make out a case of justification consistently with the fore-quoted observation of this Court in Dayanand Medical College and Hospital's case.
27. The in-service cnaidates may have been away from academics and theories because of being in-service. Still they need to be assessed as eligible for entrance in P.G. For taking up such examination, they must either keep updating themselves regularly or concentrate on studies preparatory to entrance examinations but without sacrificing or compromising with their obligations to the people whom they are meant to serve on account of being in State services."
51. The decisions in all those cases have been rendered in the context of dilution of eligibility criteria for admission to postgraduate courses, in the light of clause 9 of the Medical Council of India Regulations or in the context of constitutional reservation under Articles 15(4) or 16(4) of the Constitution of India.
52. On the facts of the present case when the experience acquired by a medical practitioner after completion of his postgraduate course is taken into account subject to the maximum of 10 marks, that is, one mark for every completed year for 10 years, the same cannot be treated as a reservation. It cannot be stated that after completing post-graduation in medicine the medical practitioner would keep quiet without practising. As observed by the Supreme Court in the above said cases, the experience for a professional doctor is certainly one of the criteria for deciding merit and that cannot be said to be either extraneous or reservation diluting the merit of the candidate. A super speciality course is certainly a class by itself and cannot be compared with post-graduation in medicine.
53. In so far as the admission to super speciality course is concerned, the eligibility criterion is completion of post-graduation in the discipline, which is not in dispute. It is presumed that a postgraduate doctor in a particular discipline as an expert in the field can acquire experience after post-graduation and the same cannot be said to be other than merit. In a profession when a person deals with a specialised field, he acquires day-to-day knowledge and learns the latest developments in the particular field to establish his career. Therefore, the contention of the learned senior counsel for the petitioners that by adopting no guidelines or no method for selecting meritorious candidates among postgraduate doctors, there is possibility of candidates with post-graduation, without merit being selected for super speciality courses is totally unfounded and not acceptable. As held by the Supreme Court in Dr.Preeti Srivastavs v. State of M.P., cited supra, it is the innovation of new techniques in the medical profession field in fighting against diseases, that makes a postgraduate doctor a very able person than a mere postgraduate degree holder in medicine who comes out of the college. When the term, 'merit' is used, it does not always mean the academic qualifications alone, especially in medical profession and other professions like law.
54. In K.K.Parmar vs. H.C.of Gujarat through Registrar and others [(2006)5 SCC 789], of course, while dealing with the promotion of High Court employees, it was held that the merit cannot be decided by academic qualifications alone. The relevant passage of the judgment is as follows:
" Merit of a candidate is not his academic qualification. It is sum total of various qualities. It reflects the attributes of an employee. It may be his academic qualification. He might have achieved certain distinction in the university. It may involve the character, integrity and devotion to duty of the employee. The manner in which he discharges his final duties would also be a relevant factor."
55. In Pre PG Medical Sangharsh Committee v. Bajrang Soni (Dr) [(2001) 8 SCC 694], while holding that in service candidates constitute a distinct class by themselves, the Supreme Court held that the mere academic excellence of a doctor is of no warrant of efficiency of his practice. The Supreme Court also held that reduction of minimum qualifying marks for in service candidates is valid and not arbitrary or discriminatory. By referring to an earlier judgment in K.Duraiswamy vs. State of Tamilnadu [(2001) 2 SCC 538], the Supreme Court while dealing with in service candidates' reservation, held as follows:
" 6. In Ajay Kumar Singh v. State of Bihar this Court held that the Indian Medical Council Act, 1956 did not empower the Council to regulate or prescribe qualifications or conditions for admission to postgraduate courses and that regulation and admission to such medical courses is not only incidental but an integral part of the power of the States, which establish and maintain such institutions out of public funds and the State could always regulate the admission policy while adhering to the standards determined by the Medical Council. The learned Judges, who delved into the matter at length, also highlighted the vital fact that mere academic performance is no guarantee of efficiency in practice in the field of Medicine and consequently, it is wrong to presume that a doctor with good academic record is bound to prove a better doctor in practice. In yet another decision reported in K. Duraisamy v. State of T.N.though rendered in the context of working out the reservations and the manner stipulated therefor, by the Government, the very question about the power of the Government also came up for consideration and one of us (Raju, J.), speaking for the Bench, while applying the earlier decision in Dhilipkumar1 observed as follows: (SCC p. 545, paras 8-9) 8. That the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion, is well established and by now a proposition well settled, too. It has been the consistent and authoritatively settled view of this Court that at the superspeciality level, in particular, and even at the postgraduate level reservations of the kind known as protective discrimination in favour of those considered to be backward should be avoided as being not permissible. Reservation, even if it be claimed to be so in this case, for and in favour of the in-service candidates, cannot be equated or treated on par with communal reservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the quota reserved on communal considerations.
9. Properly speaking, in these cases, we are concerned with the allocation of seats for admission in the form of a quota amongst in-service candidates, on the one hand, and non-service or private candidates on the other and the method or manner of working out in practice the allocation of seats among the members of the respective category. Could the State Government have legitimately made a provision allocating 50% of seats exclusively in favour of the in-service candidates and keep open the avenue for competition for them in respect of the remaining 50% along with others, denying a fair contest in relation to a substantial or sizeable number of other candidates, who are not in service and who fall under the category of non-service candidates, will itself be open to serious doubt. One such attempt seems to have been put in issue before the Madras High Court which held that reservation in favour of the in-service candidates for the academic year 1992-93 should be confined to 50% and awarding of two additional marks, instead of one additional mark for each completed year of service in primary health centres was unconstitutional and when the matter was brought to this Court, in the decision reported in State of T.N. v. T. Dhilipkumar1 the decision of the High Court has been upheld. This Court also further observed that the Government should appoint a highly qualified committee to determine from year to year what, in fact, should be the percentage-wise reservation required for the in-service candidates, having regard to the then prevailing situation and that the percentage of fifty per cent shall if found appropriate, be reduced.
7. xxxx
8. The learned counsel for the appellants, who filed the appeals with the permission of the Court, also sought to challenge the conclusion arrived at by the learned Single Judge in repelling the challenge made to the reduction of the minimum cut-off marks for selection of the in-service candidates from 50% to 33%. Apart from the tenability of the objection taken by Shri Sushil Kumar Jain, learned counsel appearing for the respondent private candidates, that if there was no challenge made to this reasoning before the Division Bench of the High Court, it is not permissible to take such a stand in this Court. We are also of the view, on the merits of the claim itself, that there is no substance in the same. It is not in controversy that during the academic years in question, there was no stipulation by the Medical Council of India of any minimum eligibility marks to be secured in the entrance examination for admission to postgraduate courses. Though it is said that in 2000 such a stipulation has been made, for the obvious reason that during the years under our consideration there is no such stipulation, the challenge in this regard does not merit our consideration or acceptance, leave alone the question as to the efficacy or binding nature of the said stipulation, which we do not propose to adjudicate upon in these cases. That apart, as rightly pointed out in one of the judgments of this Court noticed above, mere theoretical excellence or merit alone is no sufficient indicia of the qualitative merits of the candidates in the field of actual practice and application. The doctors, who are in-service candidates in various medical institutions run and maintained by the Government or government departments, have wide area and horizon of exposure on the practical side and they may not have the required extra time to keep themselves afresh on the theoretical side like an open candidate who may have sufficient time at his disposal to plod through books. The in-service candidates in contrast to the fresh or open candidates have to spend much of their time on attending and treating the patients in the hospitals they serve gaining excellence on the practical side and, in our view, they would constitute a distinct class by themselves to be given a special treatment and no grievance can be made out on the ground that the minimum eligibility marks for their selection in respect of seats earmarked for them should also be the same as that of the fresh or open candidates. We could see no discrimination or arbitrariness involved in the special provision made to meet a just and appropriate need in public interest.
56. In Suryanarayan Sahu v. Council of Scientific & Industrial Research [(1998) 2 SCC 162], of course, while dealing with service law in respect of equal pay for equal work, the Supreme Court by referring to its earlier judgment in Randhir Singh vs. Union of India [(1982) 1 SCC 618] and quoting paragraph 7 of the said judgment, held as follows:
"This Court further held thus:(SCC p.622, para 7) "It is well known that there can be and there are different grades in service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 if sought to be applied to them."
15. In State of U.P. vs. J.P.Chaurasia (1989) 1 SCC 121 again considering the question of parity in employment for the purpose of pay ficxation, this Court said that in service matters the merit and experience could be the proper basis for classification to promote efficiency in administatration and that he or she learns also by experience asmuch as by other means and further that it could not be denied that the quality of work performed by persons of longer experience was superioer than the work of newcomers. The Court was of the view that this principle was even recognised in Randhir Singh case. The Court, therefore, held that classification based on experience was a reasonable qulaification and that it had a rational nexus to the object thereof and to hold otherwise, it would be detrimental to the interest of the service itself. ...."
57. In Dr.Jagdish Saran vs. Union of India (AIR 1980 SC 820), the Supreme Court held that rural service experience for a medical practitioner would form part of merit and excellence. V.R.Krishna Iyer,J. in forthright expression explained the merit and excellence as follows:
"21. Before moving to the next aspect we may touch upon a slightly different angle which opens up a new point of view. What is merit or excellence? 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 case. Marks on this basis will take us to the same preference as reservations for in-university candidates. Here we are not prefering one with less marks, but adopting a holistic manner of marking linked up with backward settings, institutional orientation and/or like consideration."
58. In Sanjay Ahlawat vs. Maharishi Dayananad University, Rohtak [1995 AIR SCW 228] the Supreme Court held that the award of 10 extra marks to graduates in respect of postgraduate courses in the State of Haryana is not discriminatory and violative of Article 14 of the Constitution of India.
59. Again, in Gujarat University vs. Rajiv Gopinath Bhatt [(1996) 4 SCC 60] the Apex Court has held that in the merit list when first preference was given to the students from the same University and second preference was given to candidates of other Universities of the State and thereafter on the basis of such merit list, vacancies were filled up, the same was termed as a rule of preference which is not violative of Article 14 of the Constitution of India.
60. Even though institutional preference was held to be unconstitutional in AIIMS Students Union v. AIIMS [(2002) 1 SCC 426], in the peculiar circumstances of the case, it was held in Saurabh Chaudri v. Union of India [(2003) 11 SCC 146] that institutional preference to the extent of 25% of students instead of 33% could be accepted. The relevant portion of the judgment is as follows:
" 59. The discussions on this topic would remain incomplete if we fail to notice a recent decision of this Court in AIIMS Students Union rendered by one of us, Honble Lahoti, J. wherein this Court, keeping in view the peculiar situation obtaining in the case of AIIMS, held institutional reservation to be unconstitutional. It, however, keeping in view the necessity of giving institutional preference to students who had studied from AIIMS, directed that such preference be given to the extent of 25% of students instead of 33%. However, keeping in view the fact that there were forty seats in MBBS course whereas 132 seats in postgraduate courses, the institutional preference to be given to the students of AIIMS came to about 82.5%."
61. Therefore, the hierarchy of judgments show that by awarding marks for experience to doctors after completion of postgraduate course cannot be said to be dilution of merit for admission to super speciality courses. On the other hand, it is not only to strike balance between fresh candidates and experienced doctors, but also to make better experienced doctors after postgraduate degree to undergo super speciality courses it would help the society at large. If such rich experienced doctors who have gained experience by practising after post-graduation, acquire super speciality degrees, certainly it would be beneficial to the patients at large and therefore, awarding of such marks for experience can neither be treated as a reservation, nor a classification among the classes of persons and the same is a method of identifying merit as gaining experience is incidental to academic excellence in professional fields.
62. In such circumstances, the contention that proper guidelines should be laid down to avoid arbitrariness in the matter of selection even among such experienced candidates is fallacious. As I have stated above, when a person completes his postgraduate degree in medicine, it is futile to presume that such person would keep quiet without practising or without doing academic teaching in medical institutions. When a professional person completes his course, the normal presumption is that he would be practising. Simply because a person may not have lucrative practice, it does not mean that he should be academically or in experience underestimated. In other words, imposing guidelines to choose candidates among experienced doctors would some time result in arbitrariness in the matter of selection. In such view of the matter, simply because there is no guidelines for the purpose of deciding about experience, it cannot be said that there is possibility for discrimination or arbitrariness.
63. One other issue that has been raised in this case is about the legitimate expectation. The principle of legitimate expectation itself does not confer any right on a person. In fact, the concept has been explained as a circumstance where by the conduct of a public authority or any other person, another person is made to believe that a particular situation would be in existence and thereafter, when such position is altered to his disadvantage, there can be a complaint of legitimate expectation. As stated above, the principle of legitimate expectation is not a ground for granting any relief to any one. The person who relies on the doctrine of legitimate expectation must prove that he acted upon the representation and the denial of expectation has resulted to his detriment. The concept of legitimate expectation has been explained in detail by the Supreme Court and the Supreme Court held that the relief to be granted under the legitimate expectation is very limited. The said principle has been explained in detail in Sethi Auto Service Station v. Delhi Development Authority [(2009) 1 SCC 180] in the following words:
" 24. The protection of legitimate expectations, as pointed out in De Smiths Judicial Review (6th Edn.), (Para 12-001), is at the root of the constitutional principle of the rule of law, which requires regularity, predictability and certainty in the Governments dealings with the public. The doctrine of legitimate expectation and its impact in the administrative law has been considered by this Court in a catena of decisions but for the sake of brevity we do not propose to refer to all these cases. Nevertheless, in order to appreciate the concept, we shall refer to a few decisions.
25. At this juncture, we deem it necessary to refer to a decision by the House of Lords in Council of Civil Service Unions v. Minister for Civil Service, a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation. Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law, or (b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon, or (ii) he has received assurance from the decision-maker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn.
26. In Attorney General of Hong Kong v. Ng Yuen Shiu, a leading case on the subject, Lord Fraser said: (All ER p.351g-h) when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.
27. Explaining the nature and scope of the doctrine of legitimate expectation, in Food Corporation of India v. Kamdhenu Cattle Feed Industries, a three-Judge Bench of this Court had observed thus: (SCC p.76, para 8) 8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.
28. The concept of legitimate expectation again came up for consideration in Union of India v. Hindustan Development Corpn. Referring to a large number of foreign and Indian decisions, including in Council of Civil Service Unions and Kamdhenu Cattle Feed Industries and elaborately explaining the concept of legitimate expectation, it was observed as under: (Hindustan Development Corpn. case, SCC p.549, para 35) 35. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits, particularly when the element of speculation and uncertainty is inherent in that very concept. Taking note of the observations of the Australian High Court in Attorney General for New South Wales v. Quinn that to strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism, speaking for the Bench, K. Jayachandra Reddy, J. said that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. The caution sounded in the said Australian case that the courts should restrain themselves and restrict such claims duly to the legal limitations was also endorsed.
29. Then again in National Buildings Construction Corpn. v. S. Raghunathan, a three-Judge Bench of this Court observed as under: (SCC p.75, para 18) 18. The doctrine of legitimate expectation has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of legitimate expectation was evolved which has today become a source of substantive as well as procedural rights. But claims based on legitimate expectation have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel.
30. xxxx
31. Very recently in Jitendra Kumar v. State of Haryana it has been reiterated that a legitimate expectation is not the same thing as an anticipation. It is distinct and different from a desire and hope. It is based on a right. It is grounded in the rule of law as requiring regularity, predictability and certainty in the Governments dealings with the public and the doctrine of legitimate expectation operates both in procedural and substantive matters.
32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.
33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. (Vide Hindustan Development Corpn.)"
64. Applying the principle of legitimate expectation as detailed above, on the facts and circumstances of the case, when it is the policy of the Government to award marks for experience gained after postgraduate degree in medicine subject to the maximum of 10 marks and to dispense with the experience in rural service for admission to super speciality courses and that has been explained in detail by way of G.O. and also by the subsequent prospectus based on which the petitioners have applied after having known about the contents of the prospectus fully, it is not open to the petitioners now to raise the doctrine of legitimate expectation for the relief sought for.
65. Lastly, as it is contended by Mr.R.Sureshkumar, learned counsel appearing for the selected candidates who have been impleaded as respondents in three writ petitions as narrated above, it is not as if those selected candidates are without any merit. The selected candidate for M.Ch.( Surgical Gastro Enterology) who is the 4th respondent in W.P.No.14855 of 2009 has not only completed his M.S.(General Surgery) in 2008, but also passed FRCS, apart from working in the Hospital at U.K. for six years from 2003 to 2008 and thereafter he has been working in Rajarathnam Institute of Gastro Intestinal Diseases, Chennai from 2008 and for his long and useful experience gained by him, he has been given 9 marks out of 10 which cannot be termed as arbitrary or detrimental to the interest of either the petitioner or public at large, by providing an opportunity to him to join in super speciality course. That is also the case in respect of 4th respondent in W.P.No.16226 of 2009, who had completed his M.D. (Paediatrics) in 2005 and even before that, but after completion of his M.B.B.S., he worked in Primary Health Centres from 1999 to 2002 and after completing postgraduate course in medicine he was working in taluk Headquarters and he is presently working as Senior Resident Paediatrician in Stanley Medical College Hospital and for the services rendered by him after completion of his P.G. course he has been given four marks which can also not be termed as arbitrary or against the public interest. In fact, as a service candidate, he comes in the merit list. While the writ petitioner himself got only 78.75 marks out of 90 without any experience as a fresh candidate, the 4th respondent obtained 76.50 out of 90 marks and by adding four marks for experience he gained, he having been awarded 80.50 marks. That is also the case in respect of the third respondent in W.P.No.15355 of 2009 who has been selected for M.Ch.(Urology). After completion of his M.B.B.S. he was working as Civil Assistant Surgeon in Primary Health Centre, Kancheepuram from 1999 to 2002 and after completion of his postgraduate course, he was working in the Government Headquarters Hospital, Salem and presently, he is working as Tutor in Vascular Surgery in Government Kilpauk Medical College and for the experience he gained after postgraduate degree, he has been awarded three marks out of 10 which also cannot be termed as arbitrary or detrimental to the interest of the writ petitioner. In such view of the matter, even on the factual position regarding the merit of selected candidates/ respondents, there is absolutely no reason to interfere with the selection.
66. Therefore, looking into the matter in any angle, I am of the considered view that the writ petitions are misconceived and the petitioners have miserably failed to bring forth any acceptable grievance for redressal. In such view of the matter, all the writ petitions are dismissed and the interim orders passed as stated above stand vacated. No costs. Connected M.Ps. are also dismissed.
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1.State of Tamil Nadu rep. By its Secretary to Government Higher Education Department Secretariat, Chennai 600 009.
2.The Secretary Selection Committee Directorate of Medical Education Kilpauk, Chennai 600 010.
3.Medical Council of India rep. By its Secretary Pocket No.14, Sector 8 Dwarka Phase 1 New Delhi 110 077