Validity of Service Quota

CASE NO.:
Appeal (civil) 7256 of 1999
Appeal (civil) 7259 of 1999
Appeal (civil) 7260 of 1999
Appeal (civil) 7263 of 1999



PETITIONER:
PRE-P.G. MEDICAL SANGARSH COMMITTEE & ANR.

Vs.

RESPONDENT:
DR. BAJRANG SONI & ORS. ...

DATE OF JUDGMENT: 14/08/2001

BENCH:
Doraiswamy Raju, S.R.Babu




JUDGMENT:


Raju, J.

These appeals involve a challenge to the powers as well as the
right of the State Government to provide for reservation of seats for
admission to Post Graduate Medical Courses for in-service
candidates and the reasonableness or otherwise of the extent upto
which such reservations could be made. Before the learned Single
Judge, challenge was made to the decision of the
Government/University fixing 33% to be the qualifying marks for in-
service candidates to render them eligible for admission to the Post-
Graduate courses. The second ground of challenge was to the
decision of the Government to increase the reservation of seats for
admission into Post-Graduate courses for in-service candidates from
25% to 50% out of the remaining 75% of the seats after excluding
25% of the seats reserved for central quota.

The learned Single Judge by his order dated 22.2.1998 repelled
the challenge based on the first ground and held that the State, which
is authorized to regulate the admissions to Post-Graduate Courses of
Medicine by prescribing minimum qualifying marks in the entrance
examination therefor, is entitled, as in this case, to fix a minimum of
33% for the in-service candidates, and that this could not be said to
be illegal. So far as the second ground of challenge was concerned,
it met with the acceptance of the learned Single Judge, who came to
the conclusion that there was no justification made by placing
materials on record for directing such an increase in the matter of
reservation from 25% to 50% and the same was liable to be set aside
as excessive, while maintaining, at the same time, the earlier
prescribed reservation upto 25%.

Aggrieved, the State of Rajasthan as well as some of the in-
service candidates filed appeals before a Division Bench and the
Division Bench by its judgment dated 13.7.1999 set aside the order of
the learned Single Judge insofar as he interfered with the increase in
the percentage of reservation made for in-service candidates from
25% to 50% on the ground that not only the State had such powers to
prescribe, on such matters as a matter of policy, but the learned
Single Judge, who sustained such powers to inhere in the State,
could not have interfered with the policy-decision of the State
Government necessitating such increase from 25% to 50% for in-
service candidates for admission to Post-Graduate courses in the
Medical Colleges of the State, particularly when the policy-decision
was based on reasons which had nexus to the objects sought to be
achieved. In the light of the above, the Division Bench thought it
unnecessary to examine further whether the increase of seats from
25% to 50% for in-service candidates pertains to the area of
reservation or fixing the source of admission. The appeals were
accepted and allowed.

Hence, the above appeals by the petitioners before the learned
Single Judge and others permitted to file appeal by this Court. Heard
learned counsel on either side.

The very question was considered by this Court in a decision
reported in State of Tamil Nadu vs T. Dhilipkumar & Ors. (1995(5)
SCALE 208) and it was held as follows :-

"4. In so far as the additional mark awarded to
in-service candidates serving in rural areas is
concerned, the judgment of this Court in Dr.
Dinesh Kumar & Ors vs Motilal Nehru
Medical College, (1986(3) SCR 345) is the
answer to the argument that in-service
candidates serving in rural areas will, after
acquisition of post-graduate degrees, return to
rural areas. The observations in this behalf
have been cited by the High Court and in our
view, rightly.

..............................................................

6. In our view, the High Court was right in the
view that it took, that no reservation beyond
fifty per cent is ordinarily contemplated and
this percentage is what the High Court
allowed. In striking down the additional mark
for in-service candidates serving in rural
areas, the High Court followed the decision of
this Court."

In Ajay Kumar Singh And Others vs State of Bihar And
Others (1994(4) SCC 401), this Court held that the Indian Medical
Council Act, 1956 did not empower the Council to regulate or
prescribe qualifications or conditions for admission to Post-Graduate
courses and that regulation and admission to such Medical courses is
not only incidental but an integral part of the power of the States,
which establish and maintain such institutions out of public funds and
the State could always regulate the admission policy while adhering
to the standards determined by the Medical Council. The learned
Judges, who delved into the matter at length, also highlighted the vital
fact that mere academic performance is no guarantee of efficiency in
practice in the field of medicine and consequently, it is wrong to
presume that a doctor with good academic record is bound to prove a
better doctor in practice. In yet another decision reported in K.
Duraisamy and Anr. etc. etc. vs The State of Tamil Nadu and Ors.
[2001(2) SCC 538 = JT 2001(2) SC 48], though rendered in the
context of working out the reservations and the manner stipulated
therefor, by the Government, the very question about the power of
the Government also came up for consideration and one of us (Raju,
J.), speaking for the Bench, while applying the earlier decision in
1995(5) SCALE 208 (supra), observed as follows :-

"8. That the Government possesses the right
and authority to decide from what sources the
admissions in Educational Institutions or to
particular disciplines and courses therein have
to be made and that too in what proportion, is
well established and by now a proposition well
settled, too. It has been the consistent and
authoritatively settled view of this Court that at
the super-speciality level in particular and
even at the Postgraduate level reservations of
the kind known as 'protective discrimination' in
favour of those considered to be backward
should be avoided as being not permissible.
Reservation, even if it be claimed to be so in
this case, for and in favour of in-service
candidates, cannot be equated or treated at
par with communal reservations envisaged
under Articles 15(4) or 16(4) and extended the
special mechanics of their implementation to
ensure such reservations to be the minimum
by not counting those selected in open
competition on the basis of their own merit as
against the quota reserved on communal
considerations.

9. Properly speaking, in these cases, we are
concerned with the allocation of seats for
admission in the form of a quota amongst in-
service candidates, on the one hand, and non-
service or private candidates on the other and
the method or manner of working out in
practice the allocation of seats among the
members of the respective category. Could
the State Government have legitimately made
a provision allocating 50% of seats exclusively
in favour of in-service candidates and keep
open the avenue for competition for them in
respect of the remaining 50% along with
others denying a fair contest in relation to a
substantial or sizeable number of other
candidates, who are not in service and who
fall under the category of non-service
candidates, will itself be open to serious
doubt. One such attempt seems to have been
put in issue before the Madras High Court
which held that reservation in favour of in-
service candidates for the academic year
1992-93 should be confined to 50% and
awarding of two additional marks, instead of
one additional mark for each completed year
of service in primary health centers, was
unconstitutional and when the matter was
brought to this Court, in the decision reported
in State of Tamil Nadu vs T. Dhilipkumar &
Ors. [1995 (5) Scale 67] the decision of the
High Court has been upheld. This Court also
further observed that the Government should
appoint a highly qualified committee to
determine from year to year what, in fact,
should be the percentage-wise reservation
required for in-service candidates, having
regard to the then prevailing situation and that
the percentage of fifty percent shall, if found
appropriate, be reduced."

It is permissible for the Government to fix such a source or
classification of candidates from which selection for admission to the
Post-graduate Colleges in the State had to be made for yet another
genuine, relevant and reasonable cause and purpose, which has, in
our view, sufficient nexus to the larger goal of equalization of
educational opportunities and to sufficiently prefer the doctors serving
in the various Hospitals run and maintained from out of public funds
by the Government or Government departments, in the absence of
which there would be serious dearth of qualified post-graduate
doctors and experts to meet the requirements of such Hospitals run
by the State and State Departments, the only avenue open for
treatment of the large body of ordinary common man, all over the
State. This larger public interest, unlike reservations envisaged for
SC/ST with a different and laudable purpose to assist educationally
backward classes, is a distinct and vitally important public purpose in
itself absolutely necessitated in the best of public interest. The
decision reported in Dr. Narayan Sharma And Another, etc. vs Dr.
Pankaj Kr. Lehkar And Others, etc. (2000(1) SCC 44) is not directly
on the point with which we are concerned in this case. Similarly, the
observations made and dicta laid down in what is known as Mandal's
case reported in Indra Sawhney vs Union of India And Others
(1992 Supp. (3) SCC 217) also has no relevance or application to the
case on hand.

The learned counsel for the appellants, who filed the appeals
with the permission of the Court, also sought to challenge the
conclusion arrived at by the learned Single Judge in repelling the
challenge made to the reduction of the minimum cut-off marks for
selection of the in-service candidates from 50% to 33%. Apart from
the tenability of the objection taken by Shri Sushil Kumar Jain,
learned counsel appearing for the private candidate-respondents, that
if there was no challenge made of this reasoning before the Division
Bench of the High Court it is not permissible to take such a stand in
this Court, we are also of the view, on the merits of the claim itself,
that there is no substance in the same. It is not in controversy that
during the academic years in question, there was no stipulation by
the Medical Council of India of any minimum eligibility marks to be
secured in the entrance examination for admission to post-graduate
courses. Though it is said that in 2000 such a stipulation has been
made, for the obvious reason that during the years under our
consideration there is no such stipulation, the challenge in this regard
does not merit our consideration or acceptance, leave alone the
question as to the efficacy or binding nature of the said stipulation,
which we do not propose to adjudicate upon in these cases. That
apart, as rightly pointed out in one of the judgments of this Court
noticed above, mere theoretical excellence or merit alone is no
sufficient indicia of the qualitative merits of the candidates in the field
of actual practice and application. The doctors, who are in-service
candidates in various medical institutions run and maintained by the
Government or Government Departments, have wide area and
horizon of exposure on the practical side and they may not have the
required extra time to keep themselves afresh on the theoretical side
like an open candidate who may have sufficient time at his disposal to
plod through books. The in-service candidates in contrast to the
fresh or open candidates have to spend much of their time on
attending and treating the patients in the Hospitals they serve gaining
excellence on the practical side and, in our view, they would
constitute a distinct class by themselves to be given a special
treatment and no grievance can be made out on the ground that the
minimum eligibility marks for their selection in respect of seats
earmarked for them should also be the same as that of the fresh or
open candidates. We could see no discrimination or arbitrariness
involved in the special provision made to meet a just and appropriate
need in public interest.

For all the reasons stated above, these appeals fail and shall
stand dismissed. No costs.
[ S.