Jammu & Kashmir High Court
Rajkumar Pandita vs State Of J. & K. And Ors. on 10 June, 1988
Equivalent citations: AIR1989J&K37, AIR 1989 JAMMU AND KASHMIR 37
ORDER S.M. Rizvi, J.
1. By medium of this writ petition, the petitioner challenges the selection of respondents' 3 and 4 to Post-Graduate Course in the discipline of Surgery, as per Government Order No. 176-ME of 1987 dt. 4-6-1987 on various grounds, mentioned therein, particularly because of earmarking, 15 points for rural service, which, according to him, amounts to excessive reservation and hence un-constitutional.
2. The respondent No. 1 vide advertisement notice dt. 10-3-1986 invited applications for selection to the Post-
Graduation Course for various specialties.
The said advertisement notice was preceded by Government Order No. 102-HME of 1986 dt. 6-2-1986, inter alia, prescribing criteria for selection to such course. In that order, only five points were reserved for rural service.
The petitioner also applied in terms of the said notice and the Government order mentioned above. Soon thereafter, the said Government order was superseded by Government order No. 267-GR-HME of 1986 dt. 25-4-1986, altering the criterion for selection in some respects. According to it, the marks reserved for viva voce and clinical tests were deleted and 15 points were reserved for the rural service.
3. The petitioner appeared in the test for his selection to the Post-Graduation Course. When the list of selected candidates was published, he did not find his name in it. Hence, the writ petition, wherein he challenges the said selection, inter alia, on the following grounds : --
I) That vide Government Order dt. 25-4-1986, 15 points were reserved for ruralservice, which reservation is excessive and has no nexus with the object sought to be achieved, by the same. Such classification, according to him, is violative of Articles 14 and 15 of the Constitution;
II) That merit alone must be the test for selection to Post-Graduation Courses and no weight age should be given for rural service :
III) That the respondent No. 3 has done his House Job in Paediatrics, and had not full five years State Medical Service, and therefore, could not be selected for his Post-Graduation in Surgery. According to him, the said respondent could be selected only in Paediatrics and not Surgery;
IV) That the respondent No. 4 has done his house job in the Specialty of Chest Diseases and could be selected for Post-Graduation only in that Specialty. He too has been selected in Surgery, which, according to him, is against the rules;
4. The respondents were noticed about the writ petition. On behalf of respondents 1 and 2, the reply affidavit has been filed The respondents 3 and 4 were also served, but they did not choose to appear and were set ex parte.
5. The respondents 1 and2 have admitted paras 1 to 6 of the writ petition. As regards reservation of 15 points for rural service, it is submitted by them that it does not amount to excessive reservation. According to them, the Government is competent to devise and lay down the procedure and criteria for admission to the Courses in question. Enhancement of points from 5 to 15 for rural service is well within the competence of the Government and does not violate any law.
6. I have heard the learned counsel for the parties at length.
7. One thing which I noticed at the very outset is that after issuance of the advertisement notice, the Government changed the criterion for the selection. This point has, however, neither been pleaded nor argued. In my opinion, it smacks of unfairness on the part of the answering respondents, who have drastically changed the criteria after issuance of notice, putting some of the candidates at disadvantage. The, respondents could not change the criteria for selection after the advertisement notice was issued Once the candidates are noticed about the conditions of selection and the criteria for the same and they apply in terms of such notice, it would be against the principles of natural justice to change the criteria afterwards. If any change was sought to be effected in the criteria it could be only before issuance of the advertisement notice. In case of alteration in the criteria for selection after issuance of such notice, it was incumbent upon the respondents to issue a fresh advertisement notice in terms of such criteria.
8. There is no material on the file to show that the petitioner was not prejudiced by alteration of the criteria for the selection in question. The documents placed on the file only show that the advertisement notice was issued on 10-3-1986 in terms of the criteria laid down in Government Order No. 102-HMEof 1986 dt. 6-2-1986, which was later on changed on 25-4-1986 by Government Order No. 267-GR-HME of 1986. No fresh advertisement notice was issued after the criteria for selection were changed on 25-4-1986. Obviously, this must have put the petitioner to disadvantage, as he had applied in terms of the criteria prescribed in the Government Order dt. 6-2-1986. In the first Government order, only five points were reserved for the rural service, but in the second Government order, 15 points have been reserved for the same. This made a significant alteration for those who have put in seven years or more rural service. They will at the very beginning get 14/15 points more as against those who have not rural service.
9. It appears, that the concerned authorities are oblivious of some of the important requirements of law in respect of making of changes in the criteria and their timings. No doubt, State has the power to change the criteria but it should be strictly in accordance with the law. It cannot change the criteria or other conditions of notice at its whim and caprice after putting the candidates to a particular set of conditions and criteria. After all, they are the persons who should have prior notice of the same. If they appear in the examination under a particular set of criteria, how can they be tested in a different set of criteria? This would definitely prejudice them in their selection, and such practice is violative of principles of natural justice.
10. This would bring me to another important aspect of the case which too has neither been pleaded and nor argued. However, during the course of arguments, I had asked Mr. Qureshi, learned counsel for respondent 2, to show me the Government Policy about the transfer of the doctors to rural areas. Whether any option was given to them to serve in the rural areas after passing of the M.B.B.S., examination or not? If no such option was available to them, and it was left to the discretion of the competent authority either to post them in the rural or urban areas, then how are they responsible for not serving in the rural areas? The doctors posted in the urban areas without giving any option to them to serve in the rural areas, cannot be put to any disadvantage on this Score. Obviously, the reservation of some points for service in the rural areas is by way of an incentive to them so that they could sacrifice some of their comforts to serve the needy and deserving people in the far flung backward pockets of the State, and to cater to their medical care. If this incentive is not out of volition but by way of compulsion, then how could it be conferred on one and not on the other? It is only when option is given to a doctor to serve in the rural areas and he avoids the same, that he is not entitled to any benefit of such service. If he is not given any option in this behalf, he cannot be put to any disadvantage on this score. That sort of treatment would be violative of fundamental rights.
11. Mr. Qureshi had undertaken to produce before me the policy of the Government in this behalf and the rules, if any, formulated for the same. Despite a long wait he has not produced any such material before me and, therefore, I have no alternative but to presume that no rules have been framed in this regard.
12. In this view of the matter, if the petitioner has not been posted in the rural areas by the competent authority for a sufficient number of years to enable him to earn some more points for rural service, and on that account he was deprived from selection to the course in question, it would be definitely bad in law and violative of equality before law. Equality of opportunity for every citizen of India is his Constitutional guarantee, and no authority can be allowed to violate his fundamental right in any manner whatsoever. The petitioner cannot be refused selection to the Post-Graduation Course on this ground alone. Had there been a Government Policy and any rules framed in this behalf and the petitioner had refused to comply with the same, then, of course, he could not be entitled tq any such benefit. In its absence, the petitioner cannot be allowed to be put in any disadvantage under law. If he has been refused admission to the course in question on this score, that refusal is bad in law.
13. Now as regards the first ground of challenge by the petitioner to the selection in question as mentioned in the writ petition on account of excessive reservation of 15 points for rural service and the same having no nexus with the object sought to be achieved by the same, in my opinion, it is not tenable. This reservation is by way of incentive to the doctors for sharing the sufferings of backward people, living in backward areas and for sacrificing their comforts of urban life. In principle, such reservation should be there, provided it is based on some sound policy and is guided by intelligible and reasonable classification. The ratio behind it is commendable. After all, the doctors are trained on State expenses and the people living in rural areas also have to pay for it. If so, they are also entitled to their services for medical care. I don't think the said reservation is excessive. It is one point for each six months of rural service and cannot exceed 15 points in all, i.e. for 71/2 years rural service one can earn 15 points in all
14. The argument of Mr. Hali that the reservation of points for rural service has no nexus with the object sought to be achieved by it appears fallacious. According to him, the doctor should again be posted in rural areas after undergoing the Post-Graduation Course, and in that case only, there can be a nexus between the two. In my opinion, the object for reservation of some points for rural service is only to persuade the doctors of urban areas to serve the backward people of backward areas. There is no other object for such reservation. That being so, such sort of reservation is not violative of any fundamental right as enshrined in the Constitution. The Government has the power to make such reservations, provided it is based on some sound policy and supported by some material. This power flows from Article 15 of the Constitution, and in my opinion, is neither excessive nor un-constitutional
15. The second ground of challenge is that only merit should prevail for selection in the Post-Graduation Courses and no weightage should be given to rural service. I think, there can be no dispute about this principle that only merit should prevail not only in the Post-Graduation Courses, but all competitive professional Courses as well However, service in rural areas is also one kind of merit. It provides the doctor with all sorts of experiences which they cannot gain in the luxurious hospitals of the urban areas. The experience is the best merit which is of practical nature and that too, in the far flung backward areas where the doctor has to be the master of inventions and innovations. He has to tax his brain to cure the patients in absence of all medical facilities and hygenic conditions. If a doctor puts in such experience for six months and faces all sorts of trials and tribulations, for which he gets one point, by no stretch of imagination, can it be treated anything but part and parcel of the merit. In these circumstances, this argument of the petitioner also fails.
16. Mr. Hali has referred to an un-reported judgment of the Supreme Court given in Writ Peta Nos. 348-352 of 1985 titled Dr. Dinesh Kumar v. Motilal Nehru Medical College Allahabad (Reported in AIR 1986 SC 1877 at pp. 1887-88), wherein some reference has been made to the propriety or otherwise of the weightage given for the rural service. In the said judgment, Bhagwati C.J. as his Lordship then was, has observed, as under:--
"The Government of India has suggested in the scheme of examination for admission to post-graduate courses that a weightage equivalent to 15% of the total marks obtained by a student at the All India Entrance Examination should be given if he has put in a minimum of three years of rural service. It is, of course, eminently desirable that some incentive should be given to out doctors to go to the rural areas because there is concentration of doctors in the urban areas and the rural areas appear to be neglected. But we do not think that such incentive should go to the length of giving a weightage of 15% of the total marks obtained by a candidate. There are several reasons why our doctors are not persuaded to go to the rural areas in order to serve the rural masses who are badly in need of medical assistance. Some of the reasons are attraction of urban life, the prospect of building up a lucrative practice which may be possible only in urban cities, lack of proper facilities and inadequate supply of necessary medicines and above all absence of social commitment and lack of desire to serve the poor and the dis-advantaged These are some of the difficulties which have to be overcome if we want doctors to move to the rural areas. We do not think that by merely offering a weightage of 15% to a doctor for three years rural service we shall be able to bring about a migration of doctors from the urban to the rural areas. We are of the view that when selection of candidates is being made for admission on an All-India Basis, no factor other than merit should be allowed to tilt the balance in favour of a candidate. We must remember that what we are regulating are admissions to post-graduate courses and if we want to produce doctors who are M.D. or M.S. particularly Surgeons who are going to operate upon human beings, it is of the utmost importance that the selection should be based on merit. Moreover, we are extremely doubtful if a candidate who has rendered three years rural service for the purpose of getting a weightage of 15% would go back to the rural area after he has got M.D. or M.S. Degree. We are, therefore, of the view that no weightage should be given to a candidate for rural service rendered by him so far as admissions to post-graduate courses are concerned Even if an undertaking is taken from such a candidate that after obtaining M.D., or M.S., Degree he will settle down in a rural area and serve the rural masses, it would in all probability serve no useful purpose because in the absence of the requisite facilities such as hospital, medical and surgical equipment, nursing etc. it would not be possible for him to give the advantage of his higher medical education to the rural masses and the higher medical education received by him would not be of service to the community."
In my opinion, the facts of the above mentioned case are distinguishable from the facts of the present case. Firstly, because the said judgment relates to selection of some candidates being made in the scheme of Examination for admission on All India Basis; Secondly, because the said Scheme has not as yet been made applicable to the Jammu and Kashmir State, as is mentioned in the judgment itself; Thirdly, because in that Scheme 15% marks were earmarked for three years rural service, whereas in the impugned rules in the present writ petition, it is 15 points for 71/2 years.
As regards the third and fourth grounds of challenge for selection of the respondents 3 and 4 that they were selected in surgery for the Post-Graduation Course, whereas they had done house jobs in different specialities, there appears to be some confusion in the mind of the petitioner on this score. ;
The perusal of advertisement notice, particularly item 8(C) shows that the candidate must have either completed a period of one year housemanship as laid down in the University Statutes or earned exemption for it in terms of the alternatives provided therein. Even housemanship is not necessary, if a candidate has put in five years State Medical Service as provided in Clause (iii) of the said item. It is only for those candidates who have done only housemanship and have no State Medical service, that they can be selected in that particular speciality for Post-Graduation in which they have done the Housemanship. This bar is not applicable to those candidates who claim selection to Post-Graduation on the basis of State Medical Service. The respondents 3 and 4 have done their housemanship in different specialities and selected in the Post-Graduation Course in Surgery. Had they claimed their selection on the basis of housemanship, the bar of University Statute No. 3 could apply and prevent them for being selected in the said course. They have, however, been selectee because they had five years State Medical Service, and in that case. Statute 3 (supra) will have no application.
17. The respondents 3 and 4 have both done the housemanship, though not in Surgery. The respondent No. 3 has done it in paediatrics and the respondent No. 4 in Chest diseases. Both of them have been selected for Post-Graduation in the discipline of Surgery. Besides that, they have put in five years State Medical Service as also rural service. The State Medical Service and the rural service put in by both the respondents has given them some benefits for their selection to the Post-Gradual ion Course, which they were entitled to under rules. No undue benefit appears to have been given to them, and therefore, their selection to the Post-Graduation Course is not bad in law on this score.
18. Now coming to the reliefs sought for by the petitioner, He has sought quashing of Government Order No. 267-GR-HME of 1986 dt. 25-4-1986 in so far as it earmarks 15 points for rural service. As stated above, the reservation of 15 points for rural service in my opinion, is not bad in law and therefore, the question of issuing of writ of certiorari for quashing the same does not arise. As regards the quashing of selection of the respondents 3 and 4 to the Post-Gradual ion Course of Surgery, this prayer also connot be granted Their selection does not appears to me to be violat ive of any mandate of law or rules made thereunder. If their service in rural areas or having put in five years State Medical Service has earned them any benefit, it us quite in accordance with law.
19. Now, as regards the claim of the petitioner for selection to post-graduation course in the speciality of Surgery, I think he has a very strong case, to be considered for the same notwithstanding upholding of selection of respondents 3 and 4. That is so, on the basis of my observation made above in paras 7 to 12 and need not be reiterated or emphasised again. If he has not been selected for lack of rural service, it is violat ive of equality before law. As the Government has not formulated any rules for giving of option to the doctors to go for rural service (at least no such rule have been shown to me despite a directive given in this behalf), Those who have not been posted in such service cannot be deprived of any legal right for want of it, if otherwise, they are eligible. If the petitioner has been denied admission to the course in question only for lack of requisite points reserved for rural service, such action on the part of respondents would be unconstitutional, as it violates the fundamental right of the petitioner of equality of opportunity before Saw. If he is otherwise eligible for admission to such course, but for the points reserved for rural service, he cannot be denied the same. The Selection Committeeshall have to go into this question immediately and find out if the petitioner is eligible to be admitted to the post-graduation course, treating him at par with the respondents 3 and 4 in so far as, the points reserved for rural service are concerned.
20. In view of what has been stated above, and in the peculiar facts and circumstances of the case, it is hereby directed that if the petitioner is otherwise found eligible for admission to the Post-Graduation Course, but for 15 points reserved for the rural service, he shall be admitted to such course in the Speciality of Surgery. The Selection Committee concerned shall consider the petitioners case accordingly within two weeks time. If it finds him eligible but for the points reserved for rural service, it shall recommend his selection accordingly, and in that case, the competent authority is directed to admit him in the Post-Graduation course in the Speciality of Surgery.
21. The writ petition is disposed of accordingly, without any order as to costs. The file shall be consigned to records.