Chennai High Court Any Degree after Any Diploma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/09/2003
CORAM
THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN
W.P.No.11266 of 2003and W.P.Nos. 11845, 13146, 14986, 15243, 15257, 19796,19839 and 20423 of 2003andW.P.M.P.Nos.14137, 14868, 16501, 25655, 18763, 19134, 19153, 24755,24801 and 25466 of 2003
W.P.No.11266 of 2003:
Dr.K.P.Manimaran ... Petitioner
-Vs-
1. The State of Tamil Nadu, rep. by its Secretary to Govt., Health and Family Welfare Dept., Fort St.George, Chennai-9.
2. The Director of Medical Education, Kilpauk, Chennai.
3. The Secretary, Postgraduate Degree/Diploma Selection Committee, Director of Medical Education, 162, E.V.R.Periyar High Road, Kilpauk, Chennai-10. ... Respondents
Writ petition filed under Article 226 of the Constitution ofIndia for the issue of a writ of Certiorarified Mandamus as stated therein.
For petitioner: Mr.R.Krishnamoorthy, Sr.counsel for Mr.U.M.Ravichandran in W.P.No.15257 of 2003
Mr.V.K.Muthuswamy, Sr.counsel for Mr.R.Santhanam in W.P.No.11266 of 2003
Mr.K.M.Vijayan, Sr.counsel for M/s.La Law for petr. in W.P.No.20423 of 2003
Mr.U.M.Ravichandran in W.P.Nos.11845/2003, 13146/2003 14986 of 2003, 15243 of 2003 and 19839 of 2003
Mr.K.Raja in W.P.No.19796 of 2003
For respondents: Mr.V.R.Rajasekaran, Spl.G.P.(Edn.)
:ORDER
I am of the view that it will be appropriate to begin thejudgment with the following observation made by R.C.Lahoti,J. in STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC):- " Imparting instruction and giving education was philanthropy- a pious duty - in the past, and later a service. In recent times it hasdeveloped into a business and now it stands recognised as an industry. Asizeable amount of litigation centres around medical education. The nationalwealth of available seats is scarce while the aspirants, desirous of sharingsuch wealth, are numerous. Every attempt at laying down criteria for choosingthe more deserving out of the several aspirants is subjected to challengebefore the Constitutional Courts of the country."
2. The admission to professional courses is an annual featureand equally, challenge to the admission in most of the courses, particularlythe medical courses and more particularly in P.G. medical courses has becomean annual feature, with the result, almost every year several writ petitionsare filed on the file of this Court challenging the mode of admission, andseveral clauses contained in the prospectus issued by the authorities are challenged. Though this Court has upheld some of the rules and struck downsome other rules, I find that there is a constant tinkering of the clausescontained in the prospectus issued for each year leading to great uncertaintyin each year's admission in professional courses. I am of the view, it will be better if a consistent policy is adopted by the State at least for aminimum period of five years, whatever may be the provocation for amendment ofthe clauses contained in the prospectus to avoid uncertainty in admissions.
3. The clauses under challenge in the above writ petitionsare clauses-21 and 23 of the prospectus issued for Postgraduate Degree/Diploma/5 year M.Ch. (Neuro Surgery) Courses for the academic year 2003-20 04and the clauses read as under:- " Clause-21:- Candidates who are undergoing a Postgraduate Diploma inany discipline are not eligible to apply for any other Diploma course.However those who are completing their Diploma courses on or before 27.04.2003can apply for Postgraduate Degree in the concerned discipline only, providedthey produce certificate from the Head of the Institution where they areundergoing the Diploma course to the effect that they will be completing thecourse on or before 27.04.2003.
Clause-23:- Candidates who have already completed or acquired aPostgraduate Diploma course in any discipline are eligible to apply forPostgraduate Degree course only in the concerned discipline and are noteligible for any other Postgraduate Diploma/Degree courses."
4. The validity of clause I(9) of General Instructionscontained in the prospectus for the academic year 1997-98, which is similar toclause-23, was subject matter of consideration of this Court in a batch ofwrit petitions in W.P.No.1741 of 1997, etc. and the clause which was subjectmatter of consideration in those writ petitions stood as under: " Clause-I(9):- A candidate who has already acquired a PostgraduateDiploma course in any one discipline is eligible to apply for PostgraduateDegree course in that discipline during 97-98".
5. The validity of the clause-I(9) of the GeneralInstructions was considered by Mr.S.S.Subramani,J. in W.P.No.1741 of1997,etc. batch and by judgment dated 9.9.1997, learned Judge allowed thewrit petitions on the ground that the clause was violative of Article 14 ofthe Constitution of India. Learned Judge held that there should be nodiscrimination between one person and another if, as regards the subjectmatter, their position is the same.
6. The present clause-23 has been introduced to get over thelacuna pointed by Mr.S.S.Subramani,J. in the unreported decision, citedsupra, providing that it would apply not only to the candidates who alreadyappeared for postgraduate diploma course in any discipline, but also to thecandidates who have completed the postgraduate diploma course in any
discipline. The further addition in the present clause-23 is that candidateswho have already completed or acquired a postgraduate diploma course in onediscipline are not eligible for any other postgraduate diploma/degree course.
7. Mr.R.Krishnamoorthy, learned senior counsel appearing forthe petitioner in W.P.No.15257 of 2003 submitted that the minimum prescribededucational qualifications should alone be the criteria for admission and thediploma qualification is not necessary to apply for postgraduate degreecourse. Learned senior counsel after referring to clause-16(b) of theprospectus submitted that if a candidate secures postgraduate diploma in onediscipline, the duration of postgraduate degree course is two years in thesame speciality and three years in the case of other speciality. Learnedsenior counsel submitted that on the basis of clauses-13 and 16 of theprospectus, the petitioners are eligible to apply for the postgraduate degreecourse in any discipline and clause-23 is arbitrary and unreasonable as themerit which is the sole criterion for admission is sacrificed by the operationof clause-23 of the prospectus. Learned senior counsel also referred toclause-28 of the prospectus and submitted that in the counselling theadmission is made on the basis of merit and under the same clause-28, it isopen to the candidates to choose any of the discipline and the collegeavailable at the time of counselling and if clause-23 is applied in strictsense, the merit which is the sole basis for admission is given a go-by andthe person with lesser merit than a candidate with higher merit would gainadmission. Learned senior counsel also referred to the Annexure-III,"Tentative Seat Matrix" both for degree course and diploma course andsubmitted that there are many diploma courses for which there are nocorresponding postgraduate degree courses and similarly, there are manypostgraduate degree courses for which there are no corresponding postgraduatediploma courses. Learned senior counsel submitted that the additionalqualification of securing a diploma has become a disqualification and theknowledge bank cannot be regarded as a disqualification. Learned seniorcounsel submitted that the eligibility for admission in the postgraduatedegree courses is the marks obtained in the common entrance examination and ifthere is any dilution of quality and if the merit is given a go-by by theoperation of clause-23 of the prospectus, it will be violative of Article-14of the Constitution of India. Learned senior counsel also submitted thatthere are two sets of procedure for admission and in so far as candidatescoming under All India Entrance Examinations are concerned , the barprescribed in clause-23 of the prospectus issued by the respondents does notoperate against them, but it would operate only against the candidates seekingadmission on the basis of prospectus for the year 2003-2004 issued by therespondents. Learned senior counsel also referred to the prospectus issued bythe Manipal Academy of Higher Education for the year 2002 and submitted thatthe prospectus issued by Manipal Academy of Higher Education provides forgrant of additional marks for the person having qualification of P.G.Diploma, but there is no such provision awarding additional marks or weightagefound in the prospectus in question. Mr.R. Krishnamoorthy, learned seniorcounsel submitted that more than 6,000 candidates have taken up commonentrance examinations and according to him, M.D. Pediatrics course contains atotal number of 24 seats and out of 24 seats, six seats are allotted to AllIndia Category and out of remaining seats, five seats are available under opencategory and a candidate with P.G. Diploma in Pediatrics, even if he hassecured third rank, he would not be eligible, but a candidate with lessermarks would become eligible for admission and by this process, the merit ofthe candidates is completely overlooked. He therefore submitted that there isunreasonableness and the merit is given a go-by by operation of clause-23 ofthe prospectus. Learned senior counsel, in support of his submission, reliedupon the unreported decision of this Court in W. P.No.1741 of 1997, etc.batch (Dr.K.Chinnusamy and others v. State of Tamil Nadu rep. by Secretaryto Govt., Health & Family Welfare Department, Secretariat, Chennai-9 andothers) dated 9.9.1997, the decision of the Supreme Court in DINESH KUMAR v.MOTILAL NEHRU MEDICAL COLLEGE (1987 (4) SCC 459), the decision of the AndhraPradesh High Court in V.SHAMSUNDER RAO v. STATE (AIR 1982 AP 405) and thedecision of the Punjab and Haryana High Court in TJINDER SINGH SIDHU v. STATE( AIR 1992 P & H 119).
8. Mr.V.K.Muthusamy, learned senior counsel appearing forsome of the petitioners submitted that clause-23 should be construed withreference to other clauses found in the prospectus and clause-23 cannot beconstrued as a prohibitory clause. His submission is that harmoniousconstruction of various clauses should be given and if all the clauses areread together applying the principle of contextual interpretation, theintention is clear that there is an implied permission and the clause 14 or 16or 28 would operate subject to clause-23. He also submitted that acquisitionof diploma is not treated as a speciality course and once eligibilitycriterion is satisfied, clause-23 cannot be put against the petitioners. Healso referred to clause-59 and submitted that in so far as 25 percentage ofseats allotted for All India candidates are concerned, the prohibition doesnot apply and there is discrimination and equals are treated unequally. Healso submitted that clause-28 is not controlled by clause-23 and the effect ofclause-23 should be read so that it cannot override other clauses whichprescribe eligibility criteria for admission.
9. Mr.K.M.Vijayan, learned senior counsel appearing for someother petitioners submitted that at the time of eligibility of candidates, noclassification is made and at the time of selection also, no classification ismade, but only at the time of admission, the classification is made and sincethere is discrimination at the time of admission, the State Government has nopower to make such a classification at the time of admission. He alsosubmitted that in the matter of selection, the merit is given a go-by and therespondents cannot prevent a student from seeking admission to a separatediscipline. He also submitted that the clause is invalid in view of theprovisions of the Medical Council of India Regulations framed under section 33of the Medical Council Act. His further submission is that after commonentrance examinations, there can be no scope to prefer some of the candidatesand no further classification is possible after common entrance examinations.His further submission is that clause-23 is not a separate clause and it mustbe construed in the light of other clauses and the prohibition imposed inclause-23 is violative of Article-14 of the Constitution of India.
10. Mr.Raja and Mr.Sundar, learned counsel who are appearingfor other petitioners also advanced arguments and they referred to clause-28and the Medical Council of India Postgraduate Medical Education Regulationsand submitted that it is not open to the State Government to select acandidate not on the basis of merit and deny admission on the ground thatcandidate has earlier secured postgraduate diploma course.
11. Learned Special Government Pleader (Education), on theother hand, submitted that the petitioners are not having any fundamentalright to admission or to pursue higher education. He referred to thedecisions of the Supreme Court in UNNIKRISHNAN,J.P. v. STATE OF A.P. (AIR1993 SC 2178) and T.M.A. PAI FOUNDATION & ORS. v. STATE OF KARNATAKA (JT1993(1) SC 474) and submitted that the petitioners have no vested right orstatutory right to pursue higher education and it is not open to them to claimadmission as a matter of right. Learned counsel submitted that the right toseek admission is limited subject to the compliance of certain basic criteriaand they have no right to admission, but they have only a right to beconsidered for admission. He also submitted that the Government runeducational institutions and they have the power to regulate admission ofcandidates and clause-23 is a regulatory clause and the burden is on thepetitioners to prove that the clause is violative of the provisions of theConstitution and the petitioners have not elaborated or proved that clause-23is violative of any of the provisions of the Constitution and clause-23 hasbeen introduced only with the object that if a person has already secured apostgraduate diploma in one discipline, he must pursue the postgraduate degreecourse in the same discipline and if he is allowed to branch off to anotherdiscipline, it would result in a situation that he may not be a specialist intwo branches. Learned counsel submitted that if there are candidates with twospecialties, then, it would affect the rights of other candidates who have noteven secured postgraduate diploma or postgraduate degree and clause-23 is nota prohibitory clause and only regulates the mode of admission permittingcandidates who have secured postgraduate diploma to pursue postgraduate degreecourse in the same discipline. He submitted that the candidates withpostgraduate diploma form one group and the candidates without postgraduatediploma or postgraduate degree form another group and there are two differentgroups and since they fall in two different groups, the question of violationof Article-14 of the Constitution does not arise. He submitted that in viewof the availability of limited number of seats in Postgraduate degree coursein medicines, the clause-23 has been introduced. He submitted that if aperson who has secured postgraduate diploma in Pediatrics is allowed to seekadmission in M.S. Ophthalmology, one candidate may not specialize inpediatrics or another candidate may not specialize in Ophthalmology with theresult, the candidate, who had secured postgraduate diploma or postgraduatedegree in two specialties, may not be able to specialize in one of thedisciplines and the clause has been introduced keeping in mind the publicinterest so that candidates who have secured diploma in a particularpostgraduate faculty should pursue further course in that line only and hecannot deviate from the line and branch off to another speciality. He alsosubmitted that these are all colleges run by the Government and it is open tothe Government to prescribe norms for selection and other avenues are notclosed and clause-23 will override other clauses. He also submitted that someof the candidates have filed writ petitions after the counselling is over andthose candidates have approached the Court belatedly, the writ petitions filedby them should be dismissed on the ground of laches. In support of hissubmissions, learned Special Government Pleader relied on the followingdecisions:
1. CHITRALEKHA v. STATE OF MYSORE (AIR 1964 S.C. 1823)2. D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762)3. THE DIRECTOR OF MEDICAL EDUCATION & OTHERS v. Dr.V. RAMALAKSHMI(1999 WRIT L.R. 481)
4. STATE OF H.P. v. PADAM DEV (2002) 4 SCC 510)5. Dr.V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS (2003 WRIT L.R. 79)
12. Mr.R.Krishnamoorthy, learned senior counsel, in hisreply, submitted that the assumption of the Government that the acquisition ofpostgraduate diploma would become waste if the candidate goes to other branchfor his degree as the knowledge acquired in one field would not become waste.He submitted that the subjects of study are not totally unrelated and what isa qualification has become a disqualification now. He therefore submittedthat clause-23 is violative of Article 14 of the Constitution of India.Mr.V.K.Muthusamy and Mr.K.M. Vijayan, learned senior counsel also supportedthe arguments advanced by Mr.R.Krishnamoorthy, learned senior counsel.
13. I have considered the submissions of Mr.R.Krishnamoorthy,Mr.V.K.Muthusamy and Mr.K.M.Vijayan, learned senior counsel and also Mr. Rajaand Mr.Sundar, learned counsel appearing for the petitioners andMr.Rajasekaran, learned Special Government Pleader (Education) appearing forthe respondents. I am of the view, clause-21 and clause-23 are bothpermissive as well as regulatory. They are permissive in the sense that theypermit candidates who have already completed and acquired postgraduate diplomacourse in anyone of the disciplines to apply for postgraduate degree course inthe same discipline and it is regulatory in the sense that it prevents aperson from applying to some other discipline for postgraduate degree otherthan the discipline in which he has acquired postgraduate diploma. Clause-23is also conscious of the fact that there are limited number of seats availablein postgraduate degree courses and there are large number of aspirants and thepreference should be given to a candidate who has secured postgraduate diplomato pursue further study in the same direction. Clause-23 is also blind to theground realities of the situation that there are only few seats available inthe postgraduate degree courses and the first option of the candidate will beto seek postgraduate degree in the same discipline in which he haspostgraduate diploma and only if the seat in that diploma is not available, hewill opt for another postgraduate degree course which will be closely related
to the subject in which he had postgraduate diploma and also to the fact thatpostgraduate degree courses are more in number than the postgraduate diplomacourses.
14. There is no difficulty in accepting the submission ofMr.V.K. Muthusamy, learned senior counsel that all the clauses in theprospectus should be read in a harmonious manner and if clause-21 or clause-23is read in the manner indicated above, the clause will be consistent withclauses-13,15, 16 and 28 of the prospectus. I am of the view, since theclause-23 also permits a candidate to apply for postgraduate degree in thesame discipline in which he has secured postgraduate diploma, the Clause-16(a)providing that the diploma is not a necessary qualification to apply forpostgraduate degree course will not be in any way inconsistent with clause-23.Similarly, clause-16(b) which provides that the duration of postgraduatedegree course for the diploma candidates who have undergone two year coursesshall be two years in the same speciality and three years in other specialtieswill also not be inconsistent as the candidates who have acquired diploma inone discipline would be required to undergo postgraduate degree course onlyfor a period of two years in the same discipline. As far as the fixation ofduration of three years in respect of other speciality is concerned, it mustbe held that there is some inconsistency between clause-16(b) and clause-23.Similarly, clause-28 enabling candidates to choose any discipline available atthe time of counselling would mean that a candidate who has undertakenpostgraduate diploma course may choose postgraduate degree course in the samediscipline and there would be some inconsistency between clause-23 andclause-28.
15. The candidates who have acquired diploma in onediscipline has not challenged Clause-23 prohibiting them to apply for anyother postgraduate diploma course in another discipline. The petitioners whohave challenged clauses 21 and 23 are persons who have acquired postgraduatediploma in one discipline seeking admission for postgraduate degree course inanother discipline and not in postgraduate diploma course. Hence, it is notnecessary to consider the validity of clause-23 with reference to candidateswho have acquired postgraduate diploma in one discipline seeking admission inpostgraduate diploma in another discipline.
16. There is no difficulty in accepting the submission of thelearned Special Government Pleader (Education) that the State which bears thefinancial burden for running the Government Colleges is entitled to lay downcriteria for admission in the colleges run by the State and the State has thepower to decide the source from which the admission could be made and theclause providing some restriction is not arbitrary and not unreasonable whichhas the nexus with the object of the Rules. The decision of the Supreme Courtin D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762) and the decision ofthis Court in Dr. V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS (2003 WRITL.R. 79) support the case of the respondents to this extent. Equally, inSUGANTHI v. STATE OF TAMIL NADU AND ANOTHER (1984 WRIT L.R. 249), a DivisionBench of this Court considered the validity of clause 7(1) of the Prospectuswhich denied a candidate to apply for admission to M.B.B.S. course, if he hadalready got admission in other course such as Engineering, Agriculture,Veterinary BDS, B.Pharm, etc., and the Division Bench of this Court, followingthe decision of the Supreme Court in Chitralekha v. State of Mysore (AIR 1964SC 1823) held as under:- " 5. Selection of best candidates for admission to available seats indifferent category in professional colleges with an eye to restrict the numberon some reasonable basis since the colleges cannot hold beyond a particularnumber of students, is a power given to the authorities after evolving certainpolicies for the selection. One such policy in present case is to denyadmission to those students who have already got into the professionalcolleges mentioned in clause 7(1) of the prospectus and had undergone sixmonths course (first semester). Such a policy, in our opinion, is reasonableand has a nexus to the object sought to be achieved, viz., manning all thecolleges run by the Government efficiently and in distributing the seatsavailable equitably. If a candidate studying in an engineering college, whichcourse also got only a limited number of seats and for which also there iscompetition, and after writing the first semester, is allowed to compete for aseat in the medical college, it will definitely deprive the candidates whohave come in for the first time for selection to the medical course. Acandidate who has already secured a seat in a professional college stands on adifferent category and that candidate's chances of becoming a graduate in thatprofessional college is a fait accompli. Considering the limited number ofseats in various professional colleges, the Government thought it fit to laydown a policy as mentioned in clause 7(1) of the prospectus. Further, if acandidate who has got a seat in the engineering college deserts it, for theadmission which he gets in another professional college such as medicalcollege, the seat in that particular engineering college will go as a waste.The wisdom of the Government thought it necessary to bring in such a policy,which has a nexus in our opinion for the object to be achieved. By thispolicy there will be equitable distribution of limited seats available in allthe professional colleges manned by the State after determining the merit ofthe candidates eligible to appear for such a selection."
17. There can be no difficulty in holding that the Governmentwhich runs professional colleges has the power to frame a scheme and it hasthe power to restrict admission on reasonable terms and regulate the admissionand distribute the seats equitably to those who seek admission. The decisionof the Division bench of this Court in THE DIRECTOR OF MEDICAL EDUCATION &OTHERS v. Dr. V. RAMALAKSHMI (1999 WRIT L.R.481) also supports the case ofthe respondents as this Court has held that the decision of the Governmentpartakes a decision of policy depending upon exigencies of situation andhaving regard to the limited number of seats available and the financialcommitment involved for the State, it is open to the Government to regulateadmission of candidates to the courses in higher studies.
18. The decision of the Supreme Court in STATE OF M.P. v.GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC) also recognises that it is open to theState to regulate admission provided the regulation made is not arbitrary orunreasonable. I am unable to accept the submission of Mr.K. M.Vijayan,learned senior counsel that after the Medical Council of India Post GraduateMedical Education Regulations, 2000 came into force, the state Government hasno power to prescribe any condition for admission. There can be no doubt thatthe regulations framed by the Medical Council of India should be compliedwith, but, at the same time, the Supreme Court in number of cases has upheldthe power of the State Government to identify the source of admission for thecandidates seeking admission to the postgraduate medical courses and thedecision of the Supreme Court in STATE OF MP v. GOPAL D. TIRTHANI (2003) 9ILD 13 (SC) is relevant as the Supreme Court has taken note of the MedicalCouncil of India Post Graduate Medical Regulations and upheld the quota ofseats fixed for inservice candidates in medical postgraduate admission in theState of Madhya Pradesh. In other words, the source of the power of the StateGovernment can be traced to the decision of the Supreme Court, cited supra. Iam of the view, while the State Government should comply with the MedicalCouncil of India Postgraduate Medical Regulations, it can also frame its ownregulations for admission to Postgraduate medical courses which are not in anyway inconsistent with the Medical Council of India Postgraduate MedicalRegulations provided the regulation has a reasonable nexus to the object ofthe Rules. Therefore the submission of Mr.K.M.Vijayan, learned senior counselthat clause-23 is violative of the provisions of Medical Council of IndiaPostgraduate Medical Regulations and hence, it should be struck down is notacceptable, as, in my view, clause-23 is in no way conflict with the MedicalCouncil of India Postgraduate Medical Regulations.
19. The next question that arises is whether clause-21 orclause-23 is violative of Article 14 of the Constitution of India. It is wellsettled by several decisions of the Supreme Court that to withstand the testof reasonable classification within the meaning of Article-1 4 of theConstitution of India, the classification must satisfy the twin test, namely,(i) it must be founded on an intelligible differentia which distinguishespersons or things placed in a group from those left out or placed not in thegroup, and (ii) the differentia must have a rational relation with the objectsought to be achieved. In AIIMS STUDENTS' UNION v. AIIMS (2002) 1 SCC 428)Mr.R.C.Lahoti,J. speaking for the Bench held that the merit must be test whenchoosing the best. The rule of equal chance for equal marks is another basicrule. Similarly, equality of opportunity for every person in the country is aconstitutional guarantee. A candidate who gets more marks than another isentitled to preference for admission and this proposition has greaterimportance for the higher levels of education like postgraduate courses andthe higher the level of the speciality, the lesser the role of reservation.
20. It is equally true that the Supreme Court in STATE OFH.P. v. PADAM DEV (2002) 4 SCC 510) has held that the classification betweenthe candidates must be distinct and clearly defined as regards the eligibilitycriteria of candidates, the choice of candidates, the training andpost-training assistance and most importantly, the objectives of the training.It is no doubt true that the Supreme Court in ASHUTOSH GUPTA v. STATE OFRAJASTHAN (2002)4 SCC 34) has held that the concept of equality before lawdoes not involve the idea of absolute equality amongst all which may be aphysical impossibility and all that Article 14 guarantees is the similarity oftreatment and not identical treatment and the protection of equal laws doesnot mean that all laws must be uniform and equality before the law means thatamong equals the law should be equal and the law should be equallyadministered and that the likes should be treated alike and equality beforethe law does not mean that things which are different shall be treated asthough they were the same and a legislature which has to deal with diverseproblems arising out of an infinite variety of human relations must ofnecessity, have the power of making special laws to attain particular objectsand for that purpose it must have wider powers of selection or classificationof persons and things upon which such laws are to operate and meredifferentiation or inequality of treatment does not "per se" amount todiscrimination within the inhibition of the equal protection clause and theState has always the power to make classification on a basis of rationaldistinctions relevant to the particular subject to be dealt with.
21. As far as the decision of this Court in Dr.V.GEETHA v.THE STATE OF TAMIL NADU & OTHERS (2003 WRIT L.R. 79) is concerned, thedecision, in my opinion, has no application as in that case the petitioner hadalready acquired the qualification of P.G. Degree, namely, M.S. (GeneralSurgery) and by virtue of the relevant clauses of the prospectus she was madeineligible to apply for and to join another P.G. Degree or Diploma course.In that situation, this Court held that it is not open to the petitioner toput forward the plea of discrimination as the petitioner is not identicallyplaced or on par with any other candidate with a qualification of Bachelor ofMedicine and Surgery. This Court also held that having acquired a P.G.degree Qualification, the petitioner seeks to acquire another P.G. Degree inanother speciality and it would result in undue advantage being conferred onthe petitioner while depriving a valuable opportunity to other graduates inMedicine. This decision, in my opinion, has no application at all as thepetitioner in that case had already acquired postgraduate degree in onediscipline and if she was allowed to acquire another postgraduate degree insome other speciality, then, it would deprive the chances of another candidatewith no postgraduate degree qualification to acquire a P.G. Degree and inthat context, this Court held that there is no violation of Article 14 of theConstitution of India. I am of the view that it is not permissible to equatea person who has already acquired a postgraduate degree with a person who hasnot acquired a postgraduate degree or a person who has secured only apostgraduate diploma, and it is well settled that a degree and a diploma in aparticular discipline do not stand on the same footing as there are essentialdifferences between the acquisition of a degree and the acquisition of adiploma in a particular discipline and the candidate with a postgraduatediploma is required to undergo two more or three more years of intensivestudy, as the case may be, to acquire the P.G. degree and become a specialistin that particular discipline.
22. As far as the decision of this Court in THE DIRECTOR OFMEDICAL EDUCATION, & OTHERS v. Dr. V.RAMALAKSHMI (1999 WRIT LR.481) isconcerned, the decision also has no application as the clause dealt with bythe Division Bench was one relating to service candidates and if anydisciplinary proceeding was pending against them, the clause prohibited theservice candidates from sending in application. This Court, while upholdingthe clause on the ground that it is not violative of Article-14 of theConstitution of India, held that it is open to the Government to regulateadmission of candidates who were already in service to such courses in higherstudies, of only those who have no cloud around them and who have no mixed oradverse record of service.
23. As far as the counter affidavit filed by the respondentsis concerned, there are 23 courses in postgraduate degree and 17 courses inpostgraduate diploma available and the total number of seats in postgraduatedegree are 416 and postgraduate diploma are 476. Thoughthere are 23 courses in postgraduate degree, there are only 12 specialitiesfor which postgraduate diploma courses are available preceding the degreecourses. In the counter affidavit it is also stated that there are 300Government Hospitals situate in 28 Districts of Tamil Nadu in which variousspeciality departments are available. It is also stated that the policy ofthe Government is to appoint Medical Officers with minimum Postgraduatediploma qualification in the hospitals so that the people from the rural areasneed not have to travel to the referral hospitals attached with medicalcolleges.
24. The policy of the Government seems to be that if acandidate with DCH qualification which is a postgraduate diploma in childhealth subsequently takes postgraduate degree course in E.N.T. which isentirely a different speciality, his training in the previous speciality willnot be ulitlised either for the public or for the Government. The stand ofthe Government shows that it equates a postgraduate degree course with apostgraduate diploma course and an additional qualification by way of adiploma is treated as a disqualification for pursuing higher degree course.As already seen, there are only 12 specialities in the postgraduate diplomacourse for which there are corresponding specialities in postgraduate degreecourse. It is also possible to visualise the case of a person who has obtained a postgraduate diploma in child health, viz., DCH and if he is unableto get a seat in M.D. Pediatrics due to limited number of seats available inthat particular faculty and if he pursues his studies by choosing M.D. (General Medicine), it cannot be stated that the knowledge acquired by him byway of diploma in Child Health would become useless and irrelevant, when hepractises as M.D. (General Medicine), particularly in the case of medicalfield. It cannot also be stated that the diploma in Child Health is totallyunrelated to the M.D. (General Medicine) and with the higher qualification inM.D. (General Medicine) as well as the qualification of diploma in ChildHealth, he may be able to attend more efficiently the patients in the ruralareas both in the case of child health and in general medicine. Thedisqualification or the restriction in clause-21 or clause-23 of theprospectus not to permit a candidate from applying to any other speciality isalso not consonance with clause-16(b) or clause-28 of the prospectus. Byvirtue of the operation of restriction found in clause-23, the right ofcandidates to choose any of the disciplines available at the time ofcounselling is lost and at the time of counselling, if a candidate hasacquired a postgraduate diploma in Child health, he would not normally opt forM.D. (General Medicine) and if he opts for the same, then, the duration ofthe postgraduate degree course would be three years. Therefore the firstoption in such cases would be to opt for M.D. ( Pediatrics) and if the seatsare not available in that discipline, the candidate may choose any otherdiscipline. Hence, clause-23 is against the provisions of clause 16(b) orclause-28 and clause-23 takes away the right of a candidate to choose any ofthe subjects when he seeks to pursue a different speciality. Therefore, thesubmissions of Mr.R.Krishnamoorthy, Mr.V.K.Muthusamy and Mr.K.M.Vijayan,learned senior counsel are well-founded in this respect that all the clausesshould be read harmoniously and they should not be read in such a manner thatone clause is violative of another clause.
25. It is well settled that the Government has the power toregulate in the matter of admission of candidates, it does not mean that theregulation of admission of candidates should be unreasonable and there must benexus between the clause in question and the object of the Rules. It isevident that all the candidates are treated equally at the time of commonentrance examination, but, at the time of selection, they are not treatedalike. The candidates coming under clause-23 are denied admission not on theground of any merit, but only on the ground that they have securedpostgraduate diploma in some other discipline. The effect of clause-23 isthat a person with lesser merit is preferred, but a candidate with highermerit is denied admission on the score that he has secured a postgraduatediploma in some other faculty. In other words, by operation of clause-23 ofthe prospectus, there will be a serious dent to the merit based selection,particularly in postgraduate degree level.
26. The Andhra Pradesh High Court in V.SHAMSUNDER RAO v.STATE ( AIR 1982 A.P. 405) has held that it is preposterous to deny admissionto a candidate who by virtue of his merit is entitled to admission to M.S.(General Surgery) on the mere ground that he had earlier qualified foradmitted to the Postgraduate Diploma in Child Health to which he was admissionand registered only because he could not earlier qualify for M.S. (GeneralSurgery). The Court has also held that the rule making authority did notintend the applicants who had not already secured the postgraduate diploma ordegree to be denied admission in a particular subject merely because he hadregistered himself in a particular subject for the postgraduate diplomacourse. It is also relevant to notice here that Madhava Reddy, Ag.C.J.,speaking for the Bench held that any training a candidate may have undergonewould not go waste if he is admitted to M.S. (General Surgery). The basisbehind the introduction of clause-23 is that since the candidate had undergonea postgraduate diploma course in one faculty and if he is allowed to undertakepostgraduate degree course in another faculty, the knowledge acquired by himin the diploma course would become waste. In my view, there is no basis forthe said assumption and it also has no relevance when the candidate isselected on the basis of merit and merit alone.
27. The Punjab and Haryana High Court also considered asimilar question in TEJINDER SINGH SIDHU v. STATE (AIR 1992 P & H. 119)where a Division Bench of the Punjab and Haryana high Court considered thevalidity of the clause contained in the prospectus which provided that doctorswho have had postgraduate qualifications whether degree or diploma should beselected only for their respective speciality in which they have done degreeor diploma, and held that it is violative of Article-14 of the Constitution ofIndia and it is void as the securing of a higher qualification had the effectof making a candidate ineligible whereas in fact, it ought to have beenconsidered as a merit. The Punjab and Haryana High Court Court followed anearlier judgment of a Bench of that Court reported in State of Punjab v. Dr.Harnek Singh Medical Officer (1989 (3) SLR 802) wherein it was observed asunder:- " A person with higher qualifications in the speciality otherthan the one in which he is seeking appointment is ineligible whereas theother members of the service having lower qualifications are still eligiblefor appointment. It is an unreasonable discrimination. The members of theservice having higher qualifications have been placed at an disadvantageousposition qua the other members having lower qualifications. The condition isviolative of Art.14 of the Constitution."
28. I have already referred to the unreported decision ofMr.S.S. Subramani,J. in W.P.No.1741 of 1997, etc. batch, dated 9.9.1997where the learned Judge considered the decision of the Supreme Court in Dr.DINESH KUMAR v.MOTILAL NEHRU MEDICAL COLLEGE (1987) 4 SCC 459) where adirection was given by the Supreme Court to evolve a common pattern foradmission to postgraduate medical courses. Learned Judge also noticed thedecisions of Andhra Pradesh High Court and Punjab and Haryana High Court,cited supra, and held that so far as basic qualification for eligibility foradmission to postgraduate medical courses are concerned, the respondentsshould not have treated the petitioners separately and the principleunderlying Article-14 of the Constitution prohibits the same. Learned Judgeaccepted the arguments that M.B.B.S. is the basic qualification for eligibility for admission to the postgraduate medical courses and basic qualification alone should be considered and merely because the ca ndidateshave obtained a diploma in some discipline, that should not be taken as a disqualification. I am of the view that the judgment of Mr.S.S.Subramani,J.would equally apply in considering the validity of clause-23 of the prospectusin question.
29. Though the unreported decision of Mr.S.S.Subramani,J. inW.P. No.1741 of 1997, etc. batch was sought to be distinguished on theground that the clause considered by the learned Judge is different, I findthat the ratio laid down by the learned Judge is that for admission topostgraduate degree course, the basic qualification should be considered andacquisition of diploma in some other discipline is not to be regarded as adisqualification.
30. There is also an additional reason. Clause-59 of theprospectus provides that out of the seats sanctioned for postgraduatediploma/degree and M.D.S. Courses, 25% of seats are reserved for allotment toAll India candidates on the basis of All India selection. In so far as thecandidates selected under All India selection are concerned, there is noprohibition and it is open to those candidates to pursue any discipline,though they might have secured postgraduate diploma in another discipline.Though the source of admission may be different, I am of the view that theprohibition against admission to postgraduate degree course in some otherdiscipline for the same candidate is violative of Article-14 of theConstitution of India. As already observed by me, the merit is sacrificed byway of the restriction found in clause-23 and the restriction goes against theobject of the Rule and it has no nexus or link with the object of the Ruleproviding for merit based selection. The submission of learned SpecialGovernment Pleader (Education) that the petitioners have not given the detailsof discrimination is unsustainable as senior counsel appearing for thepetitioners have clearly demonstrated before the Court the unequal treatmentthat would be meted out to the petitioners by the operation of clause-23 andhow the merit will be a casualty by the process of selection adopted by virtueof clause-23 of the prospectus.
31. As far as the decision of a Full Bench of this Court inMURALI,R. Dr. v. Dr.R.KAMALAKKANNAN (1999(III) CTC 675) relied upon by thelearned Special Government Pleader is concerned, the decision has hardly anyapplication. The Bench noticed the decision in Dr.Preeti Srivastava v. Stateof Madhya Pradesh (1999 (4) Scale 579) where the Supreme Court also held thatin super speciality cases merit alone is to be considered. It was also foundby the Bench of this Court that from the merit list in both service andnon-service candidates, the merit was not the casualty and only on the basisof merit, the classification was made. However, in the present case, themerit is the casualty as a person in lower rank in the competitive examinationwill bypass a candidate who has secured higher mark in the same examination.
32. Learned Special Government Pleader also submitted that insome cases, the petitioners have approached the Court after the counselling isover and therefore, they are not eligible and their case should be consideredon a different footing and their petitions should be dismissed on the groundof laches. I find that Mr.S.S.Subramani,J. in the unreported decision inW.P.No.1741 of 1997, etc. batch, has also considered the question ofacquiescence in a detailed manner and held that where there is violation ofArticle 14 of the Constitution, the question of acquiescence does not arise.It is relevant to notice that in the case before Mr.S.S.Subramani,J., some ofthe candidates approached the Court after the counselling was over and thelearned Judge held that the mere fact that the petitioners did not participatein the counselling would not debar them from approaching the court as therewas misinterpretation given by the respondents which was challenged in thewrit petitions. I respectfully follow the decision of Mr.S.S.Subramani,J.and hold that where there is a question of violation of Article-14 of theConstitution of India, there cannot be any question of estoppel or waiver insuch cases. Moreover, I find that the persons who have come to the Court arewait-list candidates and out of the petitioners, four are entitled foradmission and other petitioners are still in the wait-list.
33. I therefore hold that clause-21 or 23 which prohibits acandidate who has already completed or acquired a postgraduate diploma in onediscipline from applying for a postgraduate degree course in anotherdiscipline is violative of Article-14 of the Constitution of India, and theresult is that all the writ petitions stand allowed to the above extent. Nocosts. Connected WPMPs. are closed. The impleading petition is ordered.
Index: YesWebsite: Yes
na.
To
1. The Secretary to Govt.,Health and Family Welfare Dept.,State of Tamil Nadu,Fort St.George,Chennai-9.
2. The Director of Medical Education,Kilpauk, Chennai.
3. The Secretary,Postgraduate Degree/Diploma SelectionCommittee, Director of Medical Education,162, E.V.R.Periyar High Road,Kilpauk, Chennai-10.
DATED: 29/09/2003
CORAM
THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN
W.P.No.11266 of 2003and W.P.Nos. 11845, 13146, 14986, 15243, 15257, 19796,19839 and 20423 of 2003andW.P.M.P.Nos.14137, 14868, 16501, 25655, 18763, 19134, 19153, 24755,24801 and 25466 of 2003
W.P.No.11266 of 2003:
Dr.K.P.Manimaran ... Petitioner
-Vs-
1. The State of Tamil Nadu, rep. by its Secretary to Govt., Health and Family Welfare Dept., Fort St.George, Chennai-9.
2. The Director of Medical Education, Kilpauk, Chennai.
3. The Secretary, Postgraduate Degree/Diploma Selection Committee, Director of Medical Education, 162, E.V.R.Periyar High Road, Kilpauk, Chennai-10. ... Respondents
Writ petition filed under Article 226 of the Constitution ofIndia for the issue of a writ of Certiorarified Mandamus as stated therein.
For petitioner: Mr.R.Krishnamoorthy, Sr.counsel for Mr.U.M.Ravichandran in W.P.No.15257 of 2003
Mr.V.K.Muthuswamy, Sr.counsel for Mr.R.Santhanam in W.P.No.11266 of 2003
Mr.K.M.Vijayan, Sr.counsel for M/s.La Law for petr. in W.P.No.20423 of 2003
Mr.U.M.Ravichandran in W.P.Nos.11845/2003, 13146/2003 14986 of 2003, 15243 of 2003 and 19839 of 2003
Mr.K.Raja in W.P.No.19796 of 2003
For respondents: Mr.V.R.Rajasekaran, Spl.G.P.(Edn.)
:ORDER
I am of the view that it will be appropriate to begin thejudgment with the following observation made by R.C.Lahoti,J. in STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC):- " Imparting instruction and giving education was philanthropy- a pious duty - in the past, and later a service. In recent times it hasdeveloped into a business and now it stands recognised as an industry. Asizeable amount of litigation centres around medical education. The nationalwealth of available seats is scarce while the aspirants, desirous of sharingsuch wealth, are numerous. Every attempt at laying down criteria for choosingthe more deserving out of the several aspirants is subjected to challengebefore the Constitutional Courts of the country."
2. The admission to professional courses is an annual featureand equally, challenge to the admission in most of the courses, particularlythe medical courses and more particularly in P.G. medical courses has becomean annual feature, with the result, almost every year several writ petitionsare filed on the file of this Court challenging the mode of admission, andseveral clauses contained in the prospectus issued by the authorities are challenged. Though this Court has upheld some of the rules and struck downsome other rules, I find that there is a constant tinkering of the clausescontained in the prospectus issued for each year leading to great uncertaintyin each year's admission in professional courses. I am of the view, it will be better if a consistent policy is adopted by the State at least for aminimum period of five years, whatever may be the provocation for amendment ofthe clauses contained in the prospectus to avoid uncertainty in admissions.
3. The clauses under challenge in the above writ petitionsare clauses-21 and 23 of the prospectus issued for Postgraduate Degree/Diploma/5 year M.Ch. (Neuro Surgery) Courses for the academic year 2003-20 04and the clauses read as under:- " Clause-21:- Candidates who are undergoing a Postgraduate Diploma inany discipline are not eligible to apply for any other Diploma course.However those who are completing their Diploma courses on or before 27.04.2003can apply for Postgraduate Degree in the concerned discipline only, providedthey produce certificate from the Head of the Institution where they areundergoing the Diploma course to the effect that they will be completing thecourse on or before 27.04.2003.
Clause-23:- Candidates who have already completed or acquired aPostgraduate Diploma course in any discipline are eligible to apply forPostgraduate Degree course only in the concerned discipline and are noteligible for any other Postgraduate Diploma/Degree courses."
4. The validity of clause I(9) of General Instructionscontained in the prospectus for the academic year 1997-98, which is similar toclause-23, was subject matter of consideration of this Court in a batch ofwrit petitions in W.P.No.1741 of 1997, etc. and the clause which was subjectmatter of consideration in those writ petitions stood as under: " Clause-I(9):- A candidate who has already acquired a PostgraduateDiploma course in any one discipline is eligible to apply for PostgraduateDegree course in that discipline during 97-98".
5. The validity of the clause-I(9) of the GeneralInstructions was considered by Mr.S.S.Subramani,J. in W.P.No.1741 of1997,etc. batch and by judgment dated 9.9.1997, learned Judge allowed thewrit petitions on the ground that the clause was violative of Article 14 ofthe Constitution of India. Learned Judge held that there should be nodiscrimination between one person and another if, as regards the subjectmatter, their position is the same.
6. The present clause-23 has been introduced to get over thelacuna pointed by Mr.S.S.Subramani,J. in the unreported decision, citedsupra, providing that it would apply not only to the candidates who alreadyappeared for postgraduate diploma course in any discipline, but also to thecandidates who have completed the postgraduate diploma course in any
discipline. The further addition in the present clause-23 is that candidateswho have already completed or acquired a postgraduate diploma course in onediscipline are not eligible for any other postgraduate diploma/degree course.
7. Mr.R.Krishnamoorthy, learned senior counsel appearing forthe petitioner in W.P.No.15257 of 2003 submitted that the minimum prescribededucational qualifications should alone be the criteria for admission and thediploma qualification is not necessary to apply for postgraduate degreecourse. Learned senior counsel after referring to clause-16(b) of theprospectus submitted that if a candidate secures postgraduate diploma in onediscipline, the duration of postgraduate degree course is two years in thesame speciality and three years in the case of other speciality. Learnedsenior counsel submitted that on the basis of clauses-13 and 16 of theprospectus, the petitioners are eligible to apply for the postgraduate degreecourse in any discipline and clause-23 is arbitrary and unreasonable as themerit which is the sole criterion for admission is sacrificed by the operationof clause-23 of the prospectus. Learned senior counsel also referred toclause-28 of the prospectus and submitted that in the counselling theadmission is made on the basis of merit and under the same clause-28, it isopen to the candidates to choose any of the discipline and the collegeavailable at the time of counselling and if clause-23 is applied in strictsense, the merit which is the sole basis for admission is given a go-by andthe person with lesser merit than a candidate with higher merit would gainadmission. Learned senior counsel also referred to the Annexure-III,"Tentative Seat Matrix" both for degree course and diploma course andsubmitted that there are many diploma courses for which there are nocorresponding postgraduate degree courses and similarly, there are manypostgraduate degree courses for which there are no corresponding postgraduatediploma courses. Learned senior counsel submitted that the additionalqualification of securing a diploma has become a disqualification and theknowledge bank cannot be regarded as a disqualification. Learned seniorcounsel submitted that the eligibility for admission in the postgraduatedegree courses is the marks obtained in the common entrance examination and ifthere is any dilution of quality and if the merit is given a go-by by theoperation of clause-23 of the prospectus, it will be violative of Article-14of the Constitution of India. Learned senior counsel also submitted thatthere are two sets of procedure for admission and in so far as candidatescoming under All India Entrance Examinations are concerned , the barprescribed in clause-23 of the prospectus issued by the respondents does notoperate against them, but it would operate only against the candidates seekingadmission on the basis of prospectus for the year 2003-2004 issued by therespondents. Learned senior counsel also referred to the prospectus issued bythe Manipal Academy of Higher Education for the year 2002 and submitted thatthe prospectus issued by Manipal Academy of Higher Education provides forgrant of additional marks for the person having qualification of P.G.Diploma, but there is no such provision awarding additional marks or weightagefound in the prospectus in question. Mr.R. Krishnamoorthy, learned seniorcounsel submitted that more than 6,000 candidates have taken up commonentrance examinations and according to him, M.D. Pediatrics course contains atotal number of 24 seats and out of 24 seats, six seats are allotted to AllIndia Category and out of remaining seats, five seats are available under opencategory and a candidate with P.G. Diploma in Pediatrics, even if he hassecured third rank, he would not be eligible, but a candidate with lessermarks would become eligible for admission and by this process, the merit ofthe candidates is completely overlooked. He therefore submitted that there isunreasonableness and the merit is given a go-by by operation of clause-23 ofthe prospectus. Learned senior counsel, in support of his submission, reliedupon the unreported decision of this Court in W. P.No.1741 of 1997, etc.batch (Dr.K.Chinnusamy and others v. State of Tamil Nadu rep. by Secretaryto Govt., Health & Family Welfare Department, Secretariat, Chennai-9 andothers) dated 9.9.1997, the decision of the Supreme Court in DINESH KUMAR v.MOTILAL NEHRU MEDICAL COLLEGE (1987 (4) SCC 459), the decision of the AndhraPradesh High Court in V.SHAMSUNDER RAO v. STATE (AIR 1982 AP 405) and thedecision of the Punjab and Haryana High Court in TJINDER SINGH SIDHU v. STATE( AIR 1992 P & H 119).
8. Mr.V.K.Muthusamy, learned senior counsel appearing forsome of the petitioners submitted that clause-23 should be construed withreference to other clauses found in the prospectus and clause-23 cannot beconstrued as a prohibitory clause. His submission is that harmoniousconstruction of various clauses should be given and if all the clauses areread together applying the principle of contextual interpretation, theintention is clear that there is an implied permission and the clause 14 or 16or 28 would operate subject to clause-23. He also submitted that acquisitionof diploma is not treated as a speciality course and once eligibilitycriterion is satisfied, clause-23 cannot be put against the petitioners. Healso referred to clause-59 and submitted that in so far as 25 percentage ofseats allotted for All India candidates are concerned, the prohibition doesnot apply and there is discrimination and equals are treated unequally. Healso submitted that clause-28 is not controlled by clause-23 and the effect ofclause-23 should be read so that it cannot override other clauses whichprescribe eligibility criteria for admission.
9. Mr.K.M.Vijayan, learned senior counsel appearing for someother petitioners submitted that at the time of eligibility of candidates, noclassification is made and at the time of selection also, no classification ismade, but only at the time of admission, the classification is made and sincethere is discrimination at the time of admission, the State Government has nopower to make such a classification at the time of admission. He alsosubmitted that in the matter of selection, the merit is given a go-by and therespondents cannot prevent a student from seeking admission to a separatediscipline. He also submitted that the clause is invalid in view of theprovisions of the Medical Council of India Regulations framed under section 33of the Medical Council Act. His further submission is that after commonentrance examinations, there can be no scope to prefer some of the candidatesand no further classification is possible after common entrance examinations.His further submission is that clause-23 is not a separate clause and it mustbe construed in the light of other clauses and the prohibition imposed inclause-23 is violative of Article-14 of the Constitution of India.
10. Mr.Raja and Mr.Sundar, learned counsel who are appearingfor other petitioners also advanced arguments and they referred to clause-28and the Medical Council of India Postgraduate Medical Education Regulationsand submitted that it is not open to the State Government to select acandidate not on the basis of merit and deny admission on the ground thatcandidate has earlier secured postgraduate diploma course.
11. Learned Special Government Pleader (Education), on theother hand, submitted that the petitioners are not having any fundamentalright to admission or to pursue higher education. He referred to thedecisions of the Supreme Court in UNNIKRISHNAN,J.P. v. STATE OF A.P. (AIR1993 SC 2178) and T.M.A. PAI FOUNDATION & ORS. v. STATE OF KARNATAKA (JT1993(1) SC 474) and submitted that the petitioners have no vested right orstatutory right to pursue higher education and it is not open to them to claimadmission as a matter of right. Learned counsel submitted that the right toseek admission is limited subject to the compliance of certain basic criteriaand they have no right to admission, but they have only a right to beconsidered for admission. He also submitted that the Government runeducational institutions and they have the power to regulate admission ofcandidates and clause-23 is a regulatory clause and the burden is on thepetitioners to prove that the clause is violative of the provisions of theConstitution and the petitioners have not elaborated or proved that clause-23is violative of any of the provisions of the Constitution and clause-23 hasbeen introduced only with the object that if a person has already secured apostgraduate diploma in one discipline, he must pursue the postgraduate degreecourse in the same discipline and if he is allowed to branch off to anotherdiscipline, it would result in a situation that he may not be a specialist intwo branches. Learned counsel submitted that if there are candidates with twospecialties, then, it would affect the rights of other candidates who have noteven secured postgraduate diploma or postgraduate degree and clause-23 is nota prohibitory clause and only regulates the mode of admission permittingcandidates who have secured postgraduate diploma to pursue postgraduate degreecourse in the same discipline. He submitted that the candidates withpostgraduate diploma form one group and the candidates without postgraduatediploma or postgraduate degree form another group and there are two differentgroups and since they fall in two different groups, the question of violationof Article-14 of the Constitution does not arise. He submitted that in viewof the availability of limited number of seats in Postgraduate degree coursein medicines, the clause-23 has been introduced. He submitted that if aperson who has secured postgraduate diploma in Pediatrics is allowed to seekadmission in M.S. Ophthalmology, one candidate may not specialize inpediatrics or another candidate may not specialize in Ophthalmology with theresult, the candidate, who had secured postgraduate diploma or postgraduatedegree in two specialties, may not be able to specialize in one of thedisciplines and the clause has been introduced keeping in mind the publicinterest so that candidates who have secured diploma in a particularpostgraduate faculty should pursue further course in that line only and hecannot deviate from the line and branch off to another speciality. He alsosubmitted that these are all colleges run by the Government and it is open tothe Government to prescribe norms for selection and other avenues are notclosed and clause-23 will override other clauses. He also submitted that someof the candidates have filed writ petitions after the counselling is over andthose candidates have approached the Court belatedly, the writ petitions filedby them should be dismissed on the ground of laches. In support of hissubmissions, learned Special Government Pleader relied on the followingdecisions:
1. CHITRALEKHA v. STATE OF MYSORE (AIR 1964 S.C. 1823)2. D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762)3. THE DIRECTOR OF MEDICAL EDUCATION & OTHERS v. Dr.V. RAMALAKSHMI(1999 WRIT L.R. 481)
4. STATE OF H.P. v. PADAM DEV (2002) 4 SCC 510)5. Dr.V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS (2003 WRIT L.R. 79)
12. Mr.R.Krishnamoorthy, learned senior counsel, in hisreply, submitted that the assumption of the Government that the acquisition ofpostgraduate diploma would become waste if the candidate goes to other branchfor his degree as the knowledge acquired in one field would not become waste.He submitted that the subjects of study are not totally unrelated and what isa qualification has become a disqualification now. He therefore submittedthat clause-23 is violative of Article 14 of the Constitution of India.Mr.V.K.Muthusamy and Mr.K.M. Vijayan, learned senior counsel also supportedthe arguments advanced by Mr.R.Krishnamoorthy, learned senior counsel.
13. I have considered the submissions of Mr.R.Krishnamoorthy,Mr.V.K.Muthusamy and Mr.K.M.Vijayan, learned senior counsel and also Mr. Rajaand Mr.Sundar, learned counsel appearing for the petitioners andMr.Rajasekaran, learned Special Government Pleader (Education) appearing forthe respondents. I am of the view, clause-21 and clause-23 are bothpermissive as well as regulatory. They are permissive in the sense that theypermit candidates who have already completed and acquired postgraduate diplomacourse in anyone of the disciplines to apply for postgraduate degree course inthe same discipline and it is regulatory in the sense that it prevents aperson from applying to some other discipline for postgraduate degree otherthan the discipline in which he has acquired postgraduate diploma. Clause-23is also conscious of the fact that there are limited number of seats availablein postgraduate degree courses and there are large number of aspirants and thepreference should be given to a candidate who has secured postgraduate diplomato pursue further study in the same direction. Clause-23 is also blind to theground realities of the situation that there are only few seats available inthe postgraduate degree courses and the first option of the candidate will beto seek postgraduate degree in the same discipline in which he haspostgraduate diploma and only if the seat in that diploma is not available, hewill opt for another postgraduate degree course which will be closely related
to the subject in which he had postgraduate diploma and also to the fact thatpostgraduate degree courses are more in number than the postgraduate diplomacourses.
14. There is no difficulty in accepting the submission ofMr.V.K. Muthusamy, learned senior counsel that all the clauses in theprospectus should be read in a harmonious manner and if clause-21 or clause-23is read in the manner indicated above, the clause will be consistent withclauses-13,15, 16 and 28 of the prospectus. I am of the view, since theclause-23 also permits a candidate to apply for postgraduate degree in thesame discipline in which he has secured postgraduate diploma, the Clause-16(a)providing that the diploma is not a necessary qualification to apply forpostgraduate degree course will not be in any way inconsistent with clause-23.Similarly, clause-16(b) which provides that the duration of postgraduatedegree course for the diploma candidates who have undergone two year coursesshall be two years in the same speciality and three years in other specialtieswill also not be inconsistent as the candidates who have acquired diploma inone discipline would be required to undergo postgraduate degree course onlyfor a period of two years in the same discipline. As far as the fixation ofduration of three years in respect of other speciality is concerned, it mustbe held that there is some inconsistency between clause-16(b) and clause-23.Similarly, clause-28 enabling candidates to choose any discipline available atthe time of counselling would mean that a candidate who has undertakenpostgraduate diploma course may choose postgraduate degree course in the samediscipline and there would be some inconsistency between clause-23 andclause-28.
15. The candidates who have acquired diploma in onediscipline has not challenged Clause-23 prohibiting them to apply for anyother postgraduate diploma course in another discipline. The petitioners whohave challenged clauses 21 and 23 are persons who have acquired postgraduatediploma in one discipline seeking admission for postgraduate degree course inanother discipline and not in postgraduate diploma course. Hence, it is notnecessary to consider the validity of clause-23 with reference to candidateswho have acquired postgraduate diploma in one discipline seeking admission inpostgraduate diploma in another discipline.
16. There is no difficulty in accepting the submission of thelearned Special Government Pleader (Education) that the State which bears thefinancial burden for running the Government Colleges is entitled to lay downcriteria for admission in the colleges run by the State and the State has thepower to decide the source from which the admission could be made and theclause providing some restriction is not arbitrary and not unreasonable whichhas the nexus with the object of the Rules. The decision of the Supreme Courtin D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762) and the decision ofthis Court in Dr. V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS (2003 WRITL.R. 79) support the case of the respondents to this extent. Equally, inSUGANTHI v. STATE OF TAMIL NADU AND ANOTHER (1984 WRIT L.R. 249), a DivisionBench of this Court considered the validity of clause 7(1) of the Prospectuswhich denied a candidate to apply for admission to M.B.B.S. course, if he hadalready got admission in other course such as Engineering, Agriculture,Veterinary BDS, B.Pharm, etc., and the Division Bench of this Court, followingthe decision of the Supreme Court in Chitralekha v. State of Mysore (AIR 1964SC 1823) held as under:- " 5. Selection of best candidates for admission to available seats indifferent category in professional colleges with an eye to restrict the numberon some reasonable basis since the colleges cannot hold beyond a particularnumber of students, is a power given to the authorities after evolving certainpolicies for the selection. One such policy in present case is to denyadmission to those students who have already got into the professionalcolleges mentioned in clause 7(1) of the prospectus and had undergone sixmonths course (first semester). Such a policy, in our opinion, is reasonableand has a nexus to the object sought to be achieved, viz., manning all thecolleges run by the Government efficiently and in distributing the seatsavailable equitably. If a candidate studying in an engineering college, whichcourse also got only a limited number of seats and for which also there iscompetition, and after writing the first semester, is allowed to compete for aseat in the medical college, it will definitely deprive the candidates whohave come in for the first time for selection to the medical course. Acandidate who has already secured a seat in a professional college stands on adifferent category and that candidate's chances of becoming a graduate in thatprofessional college is a fait accompli. Considering the limited number ofseats in various professional colleges, the Government thought it fit to laydown a policy as mentioned in clause 7(1) of the prospectus. Further, if acandidate who has got a seat in the engineering college deserts it, for theadmission which he gets in another professional college such as medicalcollege, the seat in that particular engineering college will go as a waste.The wisdom of the Government thought it necessary to bring in such a policy,which has a nexus in our opinion for the object to be achieved. By thispolicy there will be equitable distribution of limited seats available in allthe professional colleges manned by the State after determining the merit ofthe candidates eligible to appear for such a selection."
17. There can be no difficulty in holding that the Governmentwhich runs professional colleges has the power to frame a scheme and it hasthe power to restrict admission on reasonable terms and regulate the admissionand distribute the seats equitably to those who seek admission. The decisionof the Division bench of this Court in THE DIRECTOR OF MEDICAL EDUCATION &OTHERS v. Dr. V. RAMALAKSHMI (1999 WRIT L.R.481) also supports the case ofthe respondents as this Court has held that the decision of the Governmentpartakes a decision of policy depending upon exigencies of situation andhaving regard to the limited number of seats available and the financialcommitment involved for the State, it is open to the Government to regulateadmission of candidates to the courses in higher studies.
18. The decision of the Supreme Court in STATE OF M.P. v.GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC) also recognises that it is open to theState to regulate admission provided the regulation made is not arbitrary orunreasonable. I am unable to accept the submission of Mr.K. M.Vijayan,learned senior counsel that after the Medical Council of India Post GraduateMedical Education Regulations, 2000 came into force, the state Government hasno power to prescribe any condition for admission. There can be no doubt thatthe regulations framed by the Medical Council of India should be compliedwith, but, at the same time, the Supreme Court in number of cases has upheldthe power of the State Government to identify the source of admission for thecandidates seeking admission to the postgraduate medical courses and thedecision of the Supreme Court in STATE OF MP v. GOPAL D. TIRTHANI (2003) 9ILD 13 (SC) is relevant as the Supreme Court has taken note of the MedicalCouncil of India Post Graduate Medical Regulations and upheld the quota ofseats fixed for inservice candidates in medical postgraduate admission in theState of Madhya Pradesh. In other words, the source of the power of the StateGovernment can be traced to the decision of the Supreme Court, cited supra. Iam of the view, while the State Government should comply with the MedicalCouncil of India Postgraduate Medical Regulations, it can also frame its ownregulations for admission to Postgraduate medical courses which are not in anyway inconsistent with the Medical Council of India Postgraduate MedicalRegulations provided the regulation has a reasonable nexus to the object ofthe Rules. Therefore the submission of Mr.K.M.Vijayan, learned senior counselthat clause-23 is violative of the provisions of Medical Council of IndiaPostgraduate Medical Regulations and hence, it should be struck down is notacceptable, as, in my view, clause-23 is in no way conflict with the MedicalCouncil of India Postgraduate Medical Regulations.
19. The next question that arises is whether clause-21 orclause-23 is violative of Article 14 of the Constitution of India. It is wellsettled by several decisions of the Supreme Court that to withstand the testof reasonable classification within the meaning of Article-1 4 of theConstitution of India, the classification must satisfy the twin test, namely,(i) it must be founded on an intelligible differentia which distinguishespersons or things placed in a group from those left out or placed not in thegroup, and (ii) the differentia must have a rational relation with the objectsought to be achieved. In AIIMS STUDENTS' UNION v. AIIMS (2002) 1 SCC 428)Mr.R.C.Lahoti,J. speaking for the Bench held that the merit must be test whenchoosing the best. The rule of equal chance for equal marks is another basicrule. Similarly, equality of opportunity for every person in the country is aconstitutional guarantee. A candidate who gets more marks than another isentitled to preference for admission and this proposition has greaterimportance for the higher levels of education like postgraduate courses andthe higher the level of the speciality, the lesser the role of reservation.
20. It is equally true that the Supreme Court in STATE OFH.P. v. PADAM DEV (2002) 4 SCC 510) has held that the classification betweenthe candidates must be distinct and clearly defined as regards the eligibilitycriteria of candidates, the choice of candidates, the training andpost-training assistance and most importantly, the objectives of the training.It is no doubt true that the Supreme Court in ASHUTOSH GUPTA v. STATE OFRAJASTHAN (2002)4 SCC 34) has held that the concept of equality before lawdoes not involve the idea of absolute equality amongst all which may be aphysical impossibility and all that Article 14 guarantees is the similarity oftreatment and not identical treatment and the protection of equal laws doesnot mean that all laws must be uniform and equality before the law means thatamong equals the law should be equal and the law should be equallyadministered and that the likes should be treated alike and equality beforethe law does not mean that things which are different shall be treated asthough they were the same and a legislature which has to deal with diverseproblems arising out of an infinite variety of human relations must ofnecessity, have the power of making special laws to attain particular objectsand for that purpose it must have wider powers of selection or classificationof persons and things upon which such laws are to operate and meredifferentiation or inequality of treatment does not "per se" amount todiscrimination within the inhibition of the equal protection clause and theState has always the power to make classification on a basis of rationaldistinctions relevant to the particular subject to be dealt with.
21. As far as the decision of this Court in Dr.V.GEETHA v.THE STATE OF TAMIL NADU & OTHERS (2003 WRIT L.R. 79) is concerned, thedecision, in my opinion, has no application as in that case the petitioner hadalready acquired the qualification of P.G. Degree, namely, M.S. (GeneralSurgery) and by virtue of the relevant clauses of the prospectus she was madeineligible to apply for and to join another P.G. Degree or Diploma course.In that situation, this Court held that it is not open to the petitioner toput forward the plea of discrimination as the petitioner is not identicallyplaced or on par with any other candidate with a qualification of Bachelor ofMedicine and Surgery. This Court also held that having acquired a P.G.degree Qualification, the petitioner seeks to acquire another P.G. Degree inanother speciality and it would result in undue advantage being conferred onthe petitioner while depriving a valuable opportunity to other graduates inMedicine. This decision, in my opinion, has no application at all as thepetitioner in that case had already acquired postgraduate degree in onediscipline and if she was allowed to acquire another postgraduate degree insome other speciality, then, it would deprive the chances of another candidatewith no postgraduate degree qualification to acquire a P.G. Degree and inthat context, this Court held that there is no violation of Article 14 of theConstitution of India. I am of the view that it is not permissible to equatea person who has already acquired a postgraduate degree with a person who hasnot acquired a postgraduate degree or a person who has secured only apostgraduate diploma, and it is well settled that a degree and a diploma in aparticular discipline do not stand on the same footing as there are essentialdifferences between the acquisition of a degree and the acquisition of adiploma in a particular discipline and the candidate with a postgraduatediploma is required to undergo two more or three more years of intensivestudy, as the case may be, to acquire the P.G. degree and become a specialistin that particular discipline.
22. As far as the decision of this Court in THE DIRECTOR OFMEDICAL EDUCATION, & OTHERS v. Dr. V.RAMALAKSHMI (1999 WRIT LR.481) isconcerned, the decision also has no application as the clause dealt with bythe Division Bench was one relating to service candidates and if anydisciplinary proceeding was pending against them, the clause prohibited theservice candidates from sending in application. This Court, while upholdingthe clause on the ground that it is not violative of Article-14 of theConstitution of India, held that it is open to the Government to regulateadmission of candidates who were already in service to such courses in higherstudies, of only those who have no cloud around them and who have no mixed oradverse record of service.
23. As far as the counter affidavit filed by the respondentsis concerned, there are 23 courses in postgraduate degree and 17 courses inpostgraduate diploma available and the total number of seats in postgraduatedegree are 416 and postgraduate diploma are 476. Thoughthere are 23 courses in postgraduate degree, there are only 12 specialitiesfor which postgraduate diploma courses are available preceding the degreecourses. In the counter affidavit it is also stated that there are 300Government Hospitals situate in 28 Districts of Tamil Nadu in which variousspeciality departments are available. It is also stated that the policy ofthe Government is to appoint Medical Officers with minimum Postgraduatediploma qualification in the hospitals so that the people from the rural areasneed not have to travel to the referral hospitals attached with medicalcolleges.
24. The policy of the Government seems to be that if acandidate with DCH qualification which is a postgraduate diploma in childhealth subsequently takes postgraduate degree course in E.N.T. which isentirely a different speciality, his training in the previous speciality willnot be ulitlised either for the public or for the Government. The stand ofthe Government shows that it equates a postgraduate degree course with apostgraduate diploma course and an additional qualification by way of adiploma is treated as a disqualification for pursuing higher degree course.As already seen, there are only 12 specialities in the postgraduate diplomacourse for which there are corresponding specialities in postgraduate degreecourse. It is also possible to visualise the case of a person who has obtained a postgraduate diploma in child health, viz., DCH and if he is unableto get a seat in M.D. Pediatrics due to limited number of seats available inthat particular faculty and if he pursues his studies by choosing M.D. (General Medicine), it cannot be stated that the knowledge acquired by him byway of diploma in Child Health would become useless and irrelevant, when hepractises as M.D. (General Medicine), particularly in the case of medicalfield. It cannot also be stated that the diploma in Child Health is totallyunrelated to the M.D. (General Medicine) and with the higher qualification inM.D. (General Medicine) as well as the qualification of diploma in ChildHealth, he may be able to attend more efficiently the patients in the ruralareas both in the case of child health and in general medicine. Thedisqualification or the restriction in clause-21 or clause-23 of theprospectus not to permit a candidate from applying to any other speciality isalso not consonance with clause-16(b) or clause-28 of the prospectus. Byvirtue of the operation of restriction found in clause-23, the right ofcandidates to choose any of the disciplines available at the time ofcounselling is lost and at the time of counselling, if a candidate hasacquired a postgraduate diploma in Child health, he would not normally opt forM.D. (General Medicine) and if he opts for the same, then, the duration ofthe postgraduate degree course would be three years. Therefore the firstoption in such cases would be to opt for M.D. ( Pediatrics) and if the seatsare not available in that discipline, the candidate may choose any otherdiscipline. Hence, clause-23 is against the provisions of clause 16(b) orclause-28 and clause-23 takes away the right of a candidate to choose any ofthe subjects when he seeks to pursue a different speciality. Therefore, thesubmissions of Mr.R.Krishnamoorthy, Mr.V.K.Muthusamy and Mr.K.M.Vijayan,learned senior counsel are well-founded in this respect that all the clausesshould be read harmoniously and they should not be read in such a manner thatone clause is violative of another clause.
25. It is well settled that the Government has the power toregulate in the matter of admission of candidates, it does not mean that theregulation of admission of candidates should be unreasonable and there must benexus between the clause in question and the object of the Rules. It isevident that all the candidates are treated equally at the time of commonentrance examination, but, at the time of selection, they are not treatedalike. The candidates coming under clause-23 are denied admission not on theground of any merit, but only on the ground that they have securedpostgraduate diploma in some other discipline. The effect of clause-23 isthat a person with lesser merit is preferred, but a candidate with highermerit is denied admission on the score that he has secured a postgraduatediploma in some other faculty. In other words, by operation of clause-23 ofthe prospectus, there will be a serious dent to the merit based selection,particularly in postgraduate degree level.
26. The Andhra Pradesh High Court in V.SHAMSUNDER RAO v.STATE ( AIR 1982 A.P. 405) has held that it is preposterous to deny admissionto a candidate who by virtue of his merit is entitled to admission to M.S.(General Surgery) on the mere ground that he had earlier qualified foradmitted to the Postgraduate Diploma in Child Health to which he was admissionand registered only because he could not earlier qualify for M.S. (GeneralSurgery). The Court has also held that the rule making authority did notintend the applicants who had not already secured the postgraduate diploma ordegree to be denied admission in a particular subject merely because he hadregistered himself in a particular subject for the postgraduate diplomacourse. It is also relevant to notice here that Madhava Reddy, Ag.C.J.,speaking for the Bench held that any training a candidate may have undergonewould not go waste if he is admitted to M.S. (General Surgery). The basisbehind the introduction of clause-23 is that since the candidate had undergonea postgraduate diploma course in one faculty and if he is allowed to undertakepostgraduate degree course in another faculty, the knowledge acquired by himin the diploma course would become waste. In my view, there is no basis forthe said assumption and it also has no relevance when the candidate isselected on the basis of merit and merit alone.
27. The Punjab and Haryana High Court also considered asimilar question in TEJINDER SINGH SIDHU v. STATE (AIR 1992 P & H. 119)where a Division Bench of the Punjab and Haryana high Court considered thevalidity of the clause contained in the prospectus which provided that doctorswho have had postgraduate qualifications whether degree or diploma should beselected only for their respective speciality in which they have done degreeor diploma, and held that it is violative of Article-14 of the Constitution ofIndia and it is void as the securing of a higher qualification had the effectof making a candidate ineligible whereas in fact, it ought to have beenconsidered as a merit. The Punjab and Haryana High Court Court followed anearlier judgment of a Bench of that Court reported in State of Punjab v. Dr.Harnek Singh Medical Officer (1989 (3) SLR 802) wherein it was observed asunder:- " A person with higher qualifications in the speciality otherthan the one in which he is seeking appointment is ineligible whereas theother members of the service having lower qualifications are still eligiblefor appointment. It is an unreasonable discrimination. The members of theservice having higher qualifications have been placed at an disadvantageousposition qua the other members having lower qualifications. The condition isviolative of Art.14 of the Constitution."
28. I have already referred to the unreported decision ofMr.S.S. Subramani,J. in W.P.No.1741 of 1997, etc. batch, dated 9.9.1997where the learned Judge considered the decision of the Supreme Court in Dr.DINESH KUMAR v.MOTILAL NEHRU MEDICAL COLLEGE (1987) 4 SCC 459) where adirection was given by the Supreme Court to evolve a common pattern foradmission to postgraduate medical courses. Learned Judge also noticed thedecisions of Andhra Pradesh High Court and Punjab and Haryana High Court,cited supra, and held that so far as basic qualification for eligibility foradmission to postgraduate medical courses are concerned, the respondentsshould not have treated the petitioners separately and the principleunderlying Article-14 of the Constitution prohibits the same. Learned Judgeaccepted the arguments that M.B.B.S. is the basic qualification for eligibility for admission to the postgraduate medical courses and basic qualification alone should be considered and merely because the ca ndidateshave obtained a diploma in some discipline, that should not be taken as a disqualification. I am of the view that the judgment of Mr.S.S.Subramani,J.would equally apply in considering the validity of clause-23 of the prospectusin question.
29. Though the unreported decision of Mr.S.S.Subramani,J. inW.P. No.1741 of 1997, etc. batch was sought to be distinguished on theground that the clause considered by the learned Judge is different, I findthat the ratio laid down by the learned Judge is that for admission topostgraduate degree course, the basic qualification should be considered andacquisition of diploma in some other discipline is not to be regarded as adisqualification.
30. There is also an additional reason. Clause-59 of theprospectus provides that out of the seats sanctioned for postgraduatediploma/degree and M.D.S. Courses, 25% of seats are reserved for allotment toAll India candidates on the basis of All India selection. In so far as thecandidates selected under All India selection are concerned, there is noprohibition and it is open to those candidates to pursue any discipline,though they might have secured postgraduate diploma in another discipline.Though the source of admission may be different, I am of the view that theprohibition against admission to postgraduate degree course in some otherdiscipline for the same candidate is violative of Article-14 of theConstitution of India. As already observed by me, the merit is sacrificed byway of the restriction found in clause-23 and the restriction goes against theobject of the Rule and it has no nexus or link with the object of the Ruleproviding for merit based selection. The submission of learned SpecialGovernment Pleader (Education) that the petitioners have not given the detailsof discrimination is unsustainable as senior counsel appearing for thepetitioners have clearly demonstrated before the Court the unequal treatmentthat would be meted out to the petitioners by the operation of clause-23 andhow the merit will be a casualty by the process of selection adopted by virtueof clause-23 of the prospectus.
31. As far as the decision of a Full Bench of this Court inMURALI,R. Dr. v. Dr.R.KAMALAKKANNAN (1999(III) CTC 675) relied upon by thelearned Special Government Pleader is concerned, the decision has hardly anyapplication. The Bench noticed the decision in Dr.Preeti Srivastava v. Stateof Madhya Pradesh (1999 (4) Scale 579) where the Supreme Court also held thatin super speciality cases merit alone is to be considered. It was also foundby the Bench of this Court that from the merit list in both service andnon-service candidates, the merit was not the casualty and only on the basisof merit, the classification was made. However, in the present case, themerit is the casualty as a person in lower rank in the competitive examinationwill bypass a candidate who has secured higher mark in the same examination.
32. Learned Special Government Pleader also submitted that insome cases, the petitioners have approached the Court after the counselling isover and therefore, they are not eligible and their case should be consideredon a different footing and their petitions should be dismissed on the groundof laches. I find that Mr.S.S.Subramani,J. in the unreported decision inW.P.No.1741 of 1997, etc. batch, has also considered the question ofacquiescence in a detailed manner and held that where there is violation ofArticle 14 of the Constitution, the question of acquiescence does not arise.It is relevant to notice that in the case before Mr.S.S.Subramani,J., some ofthe candidates approached the Court after the counselling was over and thelearned Judge held that the mere fact that the petitioners did not participatein the counselling would not debar them from approaching the court as therewas misinterpretation given by the respondents which was challenged in thewrit petitions. I respectfully follow the decision of Mr.S.S.Subramani,J.and hold that where there is a question of violation of Article-14 of theConstitution of India, there cannot be any question of estoppel or waiver insuch cases. Moreover, I find that the persons who have come to the Court arewait-list candidates and out of the petitioners, four are entitled foradmission and other petitioners are still in the wait-list.
33. I therefore hold that clause-21 or 23 which prohibits acandidate who has already completed or acquired a postgraduate diploma in onediscipline from applying for a postgraduate degree course in anotherdiscipline is violative of Article-14 of the Constitution of India, and theresult is that all the writ petitions stand allowed to the above extent. Nocosts. Connected WPMPs. are closed. The impleading petition is ordered.
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na.
To
1. The Secretary to Govt.,Health and Family Welfare Dept.,State of Tamil Nadu,Fort St.George,Chennai-9.
2. The Director of Medical Education,Kilpauk, Chennai.
3. The Secretary,Postgraduate Degree/Diploma SelectionCommittee, Director of Medical Education,162, E.V.R.Periyar High Road,Kilpauk, Chennai-10.
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