Admission To Medical PG Courses: Madras High Court Upholds Prospectus Clause Enabling In-Service Candidates To Compete In Open Category

Justice M. Dhandapani observed as follows:

"…the State is empowered to create channels of selection by prescribing quotas for open category and in-service candidates, but the State is also within its powers to lay down norms with regard to the basis in which the merit list is to be prepared for determining the inter se merit of the candidates competing in the two different categories and how the inter se merit is to be arrived at by considering the marks obtained by the candidates in the eligibility test conducted by the testing agency coupled with the incentive marks awarded to the in-service candidates. Precluding the State from exercising the powers conferred on it by the Constitution, more especially Entry 25 List III of the Constitution would be denuding the State of its power, which has been given to it by the Constitution and as approved by the Hon'ble Supreme Court."

The court also pointed out that the petitioners have not challenged G.O. Ms. No.463 in and by which the incentive marks, that were awarded to in-service candidates were allowed to be counted while finalising the inter se merit of the candidates in the open category.

"Without there being a challenge to the said Government Order, the basis on which the subsequent order has flown resulting in grant of incentive marks and counting the same along with the eligibility marks obtained in NEET while arriving at the inter se seniority in the open category cannot be tested on the touchstone of the Constitutional provisions...", the court concluded.

While dismissing the writ petitions, the court upheld the validity of the contentious norm contained in S.29(c) of the impugned prospectus, allowing them to compete and avail incentive weightage to in-service candidates working in difficult terrains in 50 per cent Open Category.

Background

The petitioners claimed that they are Post Graduate Aspirants who have appeared in National Eligibility-Cum- Entrance Test (NEET) Exam and secured All India Ranks. The petitioners, including Dr. Parkaviyan and others, contended that the impugned Serial No.29 (c) in the prospectus issued by Selection Committee, Directorate of Medical Education, for admission to Post Graduate Degree/Diploma courses in Tamil Nadu Government Medical Colleges and Government seats in Self-Financing Medical Colleges affiliated to the Tamil Nadu Dr. M.G.R. Medical University for 2021-2022 as arbitrary and violative of Article 14.

Arguments Raised

For Petitioners

The counsel for the petitioners, Advocate Suhrith Parthasarathy argued that the impugned clause is ultra vires the Constitution and Post-Graduate Medical Education Regulations, 2000. Therefore, the petitioners also challenged the consequential GO (D) No. 1108 dated 4^th December 2021 for selection of candidates to PG Medical courses under State Wise Quota based on the contentious clause 29(c) in the Admission Prospectus. Clause 29 (c) permitted in-service doctors to apply for the remaining 50 per cent seats in Open Category, in addition to the 50 per cent seats reserved exclusively for in-service candidates.

By virtue of Rule 9(4) of the PG Medical Education Regulations, a merit list is prepared at All India Level and State Level based on the marks secured by the candidates in NEET Exam.

Presently, 50 per cent of the seats to post-graduate degree courses are allocated towards the All-India Quota and the remaining 50% seats are allocated to the Tamil Nadu Government Medical Colleges and Government seats in Self-Financing Medical Colleges.

The impugned clause in the prospectus reads as given below:

"…Out of the 50% seats in State Government quota, 50% of the seats will be exclusively allocated to in-service candidates serving in Government health institutions in the State of Tamil Nadu and remaining 50% of seats will be allocated to Open category which will be open to both service and non-service candidates. The seats in above categories will be filled up based on the marks already defined or such criteria to be defined by the Government from time to time…"

The petitioners clarified that they were not against the reservation of 50% for in-service candidates and also the weightage granted to the in-service candidates for rendering service in remote/difficult/hilly/rural areas, and adding the said weightage to their NEET score to arrive at the overall merit within the in-service quota. However, they vehemently countered the application of the same to the Open Category.

The petitioner also argued that the impugned clause confers an undue advantage for in-service candidates working in difficult terrains over their counterparts working in urban and corporation areas, and even Doctors who originally hail from such difficult terrains or those who currently work in Private Hospitals.

Another contention of the petitioner doctors was that though proviso to 9(4) of 2000 Regulations allows grant of weightage marks as incentive by certain percentage for in-service persons in difficult terrains within the 50 per cent quota allocated for them, it cannot be carried over to the NEET Score of an individual in the Open Category, by differentiating between the latter and the In-Service Candidates. For establishing that there is an intelligible differentia for such a classification of candidates seeking admission to PG Medical Course, the petitioner relied on State of M.P. & Ors. v. Gopal D.Tirthani & Ors. (2003 (7) SCC 83).

Referring to Satyabrata Sahoo & Ors. v. State of Orissa & Ors. (2012 (8) SCC 203), the petitioners further submitted that Supreme Court has already held that giving weightage to in[1]service candidates to gain admission through the open category in post-graduate medical admission is invalid. According to the petitioners, it was held in the said decision that making inroads into the Open Category is also violative of Clause 9 (1)(a) of the MCI Regulations as per which comparative merit is the only admission criteria permissible.

Additional Advocate General For State

Additional Advocate General for the State contended that incentive weightage marks is provided only in a miniscule proportion to in-service doctors, discharging their duty in certain difficult terrains. None of the incentive weightage for service in hills to rural areas does not exceed 10 per cent, submitted AAG. AAG also pointed out that not all of the in-service doctors could avail the incentive weightage since it's exclusively applicable only to those who 'discharge their duties in places, foregoing all the comforts and their youthful time'.

Relying on T.N. Medical Officers Association & Ors. v. Union of India & Ors. (2021 (6) SCC 568), the state also argued that it is settled law that the state has the power to provide reservation for admission in medical education, with reference to Entry 25, List III of the Constitution. The AAG also relied on Gopal Tirthan'si and Duraisamy's cases wherein the apex court held that providing a separate channel for in-service candidates in the matter of selection to post-graduate medical degrees is valid.

For Private Respondents

Senior Advocate P. Wilson, appearing for the private respondents (candidates in-service of the Government) argued that the proviso to Regulation 9 (4) should be read in tandem with Regulation 9 (4) and should not be read in isolation. He submitted that the inter se merit of a candidate is arrived at after publication of NEET results and the score obtained by the candidate in the merit list on the State-wise quota is finalized after adding the incentive marks given to an in-service candidate for his services rendered in difficult/hilly/remote/rural areas. According to him, the merit list, found in proviso to Regulation 9 (4) is a consolidated merit list and it cannot be two different merit lists, one for the open category and one for in-service candidates.

In its gist, Senior Counsel differentiated the case laws (Gopal Tirthani's case and Satyabatra Sahoo's case) relied upon by petitioner to prove that weightage incentive for in-service doctors must not be extended to Open Category. Thereafter, the counsel for the private respondents also contended that the Supreme Court having given its seal of approval to provide a separate channel for selection of in-service candidates (doctors) under the State quota. He also iterated AAG's submission that the State has the power under Entry 25 List III of the Constitution to frame any scheme for selection of candidates under its quota.

Moreover, the counsel added that Regulation 9 (4) and the proviso thereto have been held to be constitutionally valid by the Supreme Court. Therefore, the case of the petitioners was that the State cannot impose double reservation by counting the weightage incentive marks obtained by the in-service doctors, for services rendered by them in difficult/hilly/remote/rural areas while considering their case under the open category falls foul of the decision of the Hon'ble Supreme Court in T.N. Medical Officers Association case. Therefore, he requested the court to dismiss the petition.

Reply To The Submissions Made By Respondents

Replying to all the submissions made by the respondents, the petitioners relied on Constitutional bench judgment in Modern Dental College & Research Centre v. State of M.P. (2016 (7) SCC 353, which is extensively referred to in T.N Medical Officers Association Case. Based on the observations made by the court, the counsel argued that the two avenues of selection, viz., open category and in-service are two separate channels and that inter se merit has to be assessed in the respective channels and the inter se merit of one channel cannot be imported to the inter se merit of the other channel.

Since Satyabatra Sahoo's case was in 2012, the petitioner also argued that the court was well aware of Regulation 9 from the year 2000 while pronouncing the judgment. Therefore, the counsel argued that the incentive marks granted to in-service candidates for discharging duties in difficult/hilly/remote/rural areas should be counted only within the 50% quota earmarked for in-service candidates. Such a measure was intended to put them on an equivalent footing with the in-service candidates working in urban centres of the Governmental machinery. The petitioner underscored that it was not intended for the purpose of putting them on an equivalent footing with the persons belonging to open category, as the two category of persons are 'not an equatable denomination'.

Court's Findings

At the outset, the High Court pondered over the necessity of reservation for in-service candidates after a brief reference to T.N. Medical Officers Association case and noted as follows:

"…It is also to be remembered that more than 50% of the population in Tamil Nadu live in villages, where the basic medical facilities are below par. There are about 1885 primary health centres in Tamil Nadu and many of the primary health centres are located in the remotest part of the State, where giving even the basic medical facilities is a herculean task. The State, with the laudable object of improving the health care system and to provide the public with good medical services at the opportune point of time has carved out the reservation from among its quota in the medical seats in post-graduate and super specialty courses for in-service candidates, so that such of those persons, would attach themselves to the services of the Government in taking the necessary health facilities to the doorstep of the common man…"

Pointing out that Tamil Nadu is called the 'Health Capital' of India, the bench also observed that the infrastructure provided for the Government Hospitals is one of the highest in the country. Having set out the background for reservation provided for in service candidates and incentives to those working in difficult terrains, the court added that 'villages are the backbone of the country and developing the villages alone would pave the way for further development of the country'.

"The health of the villages and its villagers is of foremost importance in securing the health of the nation", the court remarked.

The court examined the T.N. Medical Officers Association case and made an inference that the Constitution Bench held that Regulation 9 (IV) of the MCI Regulations making provision for reservation of in-service doctors by the State from the State-wise merit list published would result in deviation from a mandatory statutory scheme.

"…The aforesaid sub clause is required to be construed in the light of the State's power to make provision over the admission norms, provided the candidates fulfill the basic admission criteria contained in the MCI Regulations.", Madras High Court noted about the Constitution Bench's reasoning in the judgment.

Carefully analysing the judgment, High Court made it clear that the apex court was of the opinion that State is within its legislative competence to create two separate channels (Open Category & Inservice Category) for filling up the seats which fall under the State-wise quota.

"The Constitution Bench has held that if Regulation 9, more particularly Regulation 9 (IV) of MCI Regulations deals with reservation for in-service candidates, in that case, it will be ultra vires of the Indian Medical Council Act, 1956 and it will be beyond the legislative competence under List I Entry 66. The Constitution Bench has, therefore, held that the States cannot be precluded from providing for reservation to in-service candidates under its quota in exercise of its powers under List III Entry 25."

The court went on to address another aspect of the rival contentions made by the parties and noted as follows:

"...it is amply evident that initially the merit list is based on the NEET score obtained on all India basis. The said merit list would form the basis for being considered for selection under the all India quota. Insofar as the State wise quota is concerned, based on the said merit list, after giving the 50% quota to the all India merit list, the balance 50% quota is taken over by the State for being given in accordance with the State-wise merit list. At this point, comes into play the proviso to Regulation 9 (4) and the provisio thereto."

On the two modes of selection laid down in Gopal Tirthani and Satyabatra Sahoo's cases, the bench opined that the Constitution Bench in TN Medical Officer's Association Case has divested the ration in prior case to a limited extent and and approved the stand of the State to allow the in-service candidates to import the incentive marks given to them to be carried over to the open category. The court also pointed out that the constitution bench has adverted to the reasoning adopted in Gopal Tirthani's case wherein the nature of work rendered by the said in-service candidates, unmindful of the nature of the terrain and the difficulties faced by them and their family members must be considered. The said factum warrant a different yardstick to be adopted by the State in considering their case for allowing them to carry their incentive marks even to the open category, according to the High Court's analysis of the Constitution Bench judgment.

"…The Constitution Bench also has quoted with approval the observation made in Duraisamy's case by holding that providing two sources of entry at the post graduation level in certain proportion between in-service candidates and other candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners… Therefore, from a careful analysis of the decision of the Constitution Bench in T.N. Medical Officers Association case vis-a-vis the decisions in Gopal Tirthani and Satyabatra Sahoo's case clearly reveal that the scope, which was kept minimised in Gopal Tirthani and Satyabatra Sahoo's case has been expanded by the Constitution Bench in the decision in T.N. Medical Officers Association case… It is only with the laudable object of enabling the in-service doctors, to pursue higher studies and, thereafter to serve in rural and difficult areas, which otherwise would weaken the public health system and make medical assistance a distant dream for such of those general public co-habiting in difficult/hilly/remote/rural areas.", the court noted.

Case Title: Dr.Parkaviyan R. v. The State of Tamil Nadu & Ors.

Case No: W.P. Nos.22937-25749/2021

Citation: 2022 LiveLaw (Mad) 23

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