(Petition filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Declaration declaring Clauses 50,51 and 63 of the prospectus for admission to 3 years Higher Speciality Course in Tamil Nadu Government Medical Colleges for the period of 2005-2006 as unconstitutional and strike down the same.)

In all these writ petitions, this Court is called upon to decide as to whether the award of one mark for every year of Rural service under the Director of Medical and Rural Health Services or Director of Public Health Controlled Institutions up to a maximum of 10 marks to in-service candidates for consideration of their admissions to Higher Speciality Courses in Medicine is justified. The relevant clauses in the Prospectus are as follows:

50) The merit list for each discipline of the Higher Speciality Course will be prepared by computing the entrance examination marks and service marks which will be calculated to a maximum of 100 (Entrance Mark 90 + Service Mark 10). Rural services marks will be added to the total aggregate marks of the service candidates.

51)a) The Individual Mark (Service/Non-service) is calculated by computing the marks secured by the candidate in the Entrance Examination and Service Marks of one mark for each year after completion of the P.G. Degree which is calculated from the last date of the month of passing examination (E.g. If a candidate scores 50 marks out 90 marks in Entrance examination and completed two years after P.G. Degree on the date of Entrance Examination, his/her total Aggregate Marks Will be 50+2=52).

b) Service Candidates will be awarded one mark for every year of Rural service under the Director of Medical and Rural Health Services or Director of Public Health Controlled Institutions up to a maximum of 10 marks. These rural service marks as on the date of Entrance Examination will be added to the Total aggregate marks while preparing the Merit list. Rural service marks will be Calculated based on the length of service rendered in Primary Health Centres alone.

63) a) The selection will be made by counseling based only on merit and no communal reservation will be followed. 50% of the seats will be made available as Open Competition for selection among both service/non-service candidates 50% of the seats will be made available only for Service candidates. In case of odd number seat remaining vacant that seat shall be selected as per merit among both Service and Non-service candidates put together. 50% of seats in each college are reserved for service candidates whether they are selected under open or service quota.

b) If there are non-service candidates opting for any Higher Speciality course, the same will be allotted to service candidates

2. In exercise of powers under Article 162 of the Constitution, the State Government issue Government Orders, which are normally known as policy Government Orders each year, prescribing eligibility norms, educational qualifications, minimum age requirements, source of admission etc., apart from prescribing the communal rule of reservation.

3. The State is bound to follow the Regulations framed by the Medical Council of India insofar as the eligibility, educational qualifications, age restrictions, number of seats to be filled in and also the allotment of candidates only to the colleges recognized by the Medical Council of India approved by the State Government and affiliated by Universities. The State is also bound to follow communal reservation for under and Post Graduate Medical Courses. The prescription of higher standard for admission to courses by the State is also recognized by Courts.

4. The power of the State Government to identify the source of admission, useful reference could be made to the following judgments of the Supreme Court.

1) CHITRALEKHA VS STATE OF MYSORE (A.I.R. 1964 SC 1823) [LQ/SC/1964/20] ; 2) P. RAJENDRAN VS STATE OF MADRAS (A.I.R. 1968 SC 1012) [LQ/SC/1968/10] ; 3) CHITRA GHOSH VS UNION OF INDIA (A.I.R. 1970 SC 35) and 4) K.P. GANGULY VS UNIVERSITY OF LUCKNOW (A.I.R. 1984 SC 186) [LQ/SC/1983/294] .

5. In MAHARASHTRA S.B.O.S. & H.S. EDUCATION VS PARITOSH (A.I.R. 1984 SC 1543) [LQ/SC/1984/165] the Supreme Court while considering the power of review by the Courts on the policy incorporated in rule or regulation has observed in para 16 as follows:

“ The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the. The legislature and its delegate are the Sole repositories of the power to decide what policy should be pursued in relation to matters covered by the and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.”

6. In AMBESH KUMAR VS PRINCIPAL, LLRM MEDICAL COLLEGE, MEERUT ( A.I.R.1987 SC 400) [LQ/SC/1986/531] the Supreme Court held that the State is entitled to provide additional eligibility qualification in furtherance of the standard in an institution, especially when the number of seats for admission to various Post Graduate courses both degree and diploma in Medical Colleges is limited and a large number of candidates apply for admission to those courses of study.

7. A prospectus issued with regard to admission to educational courses is a declaration to the candidates that a field for development of educational potentialities is available for exploration and that there could be a chance of success. It is a piece of information. However, the norms and rules that should guide and should be adopted for selection must not be unreasonable, arbitrary or discriminatory. Normally prospectus is binding not only on the candidates but also on the State including the machinery appointed by the State for identifying the candidates for selection and admission. The Principle that the prospectus is binding on all persons concerned has been laid by the Supreme Court in PUNJAB ENGINEERING COLLEGE, CHANDIGARH VS SANJAY GULATI (A.I.R. 1983 SC 580) [LQ/SC/1983/115] . Following the same, a Division Bench of this Court has also observed in RATHNASWAMY, DR.A. VS DIRECTOR OF MEDICAL EDUCATION (1986 Writ Law Reporter 207) that the rules and norms of the prospectus are to be strictly and solemnly adhered to. The same view is also taken by another Division Bench of this Court in NITHIYAN.P. AND S.P. PRASANNA VS STATE OF TAMIL NADU (1994 Writ Law Reporter 624).

8. Mr. K.M. Vijayan, the learned senior counsel advanced the arguments on behalf of the petitioners in W.P.Nos.23591,23592 and 25192/2005 and those arguments were adopted by the other counsel appearing for other petitioners in W.P.Nos.23607,23608,24345 and 247422/2005. According to the learned senior counsel, there cannot be any reservation for admission to Higher Speciality courses. Award of one mark for service candidates for each year of service up to the maximum of 10 marks would amount to sacrificing the merit, thereby depriving the private candidates to secure admission based on academic merit. He would also submit that even among in- service candidates, award of marks is restricted only to the candidates serving in primary health centers in rural areas and refusal to extend the same benefit to other service candidates would amount to discrimination.

9. Mr. R. Muthukumaraswamy, learned Additional Advocate General, on the other hand, would submit that the power of the State Government to identify the source of admission is approved by various Courts. The State Government has identified service candidates serving in rural areas and to make them eligible to compete for admission, weightage of one mark for each year of service up to the maximum of 10 marks is awarded. Award of marks to the service candidates is only to encourage the Doctors to serve in rural areas as there is large scale of reluctance on doctors to serve in the rural areas. He would also submit that award of marks to the service candidates, who are serving in the rural areas under the services of Director of Medical Health Services as well as the Director of Public Health Controlled Institutions, cannot be termed as discriminatory as the Doctors serving in urban areas cannot be equated to the doctors serving in rural areas.

10. There is no difficulty in holding that there cannot be any reservation in admission to Higher Speciality courses. In DR. PREETI SRIVASTAVA VS STATE OF MADHYA PRADESH ( 1999(7) SCC 120) the Supreme Court has held that at the level of super specialisation there cannot be any reservation because any dilution of merit at that level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of super speciality, something more than a mere professional competence as a doctor is required. The Supreme Court further held that since no relaxation is permissible at the highest levels in the medical institutions, and accordingly declared that the reservations made for the Scheduled Caste and the Scheduled Tribe candidates for admission to DM and MCH courses is not consistent with the constitutional mandate under Articles 15(4) and 16(4). However, the question as to whether weightage of service would amount to violation of Article 15(4) or 16(4) of the Constitution. In this context, the judgment of the Supreme Court reported in STATE OF MADHYA PRADESH VS GOPAL D. TIRTHANI ( 2003(7) SCC 83) can be usefully referred to:

It is permissible to assign a reasonable weightage to services rendered in rural/tribal areas by the in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the Pre-PG test by securing the minimum qualifying Marks as prescribed by the Medical Council of India”

11. Mr.K.M. Vijayan, learned senior counsel would however submit that in the said case the Supreme Court was considering the prospectus for admission to Post Graduate courses where reservation was allowed. Hence, the said judgment is not applicable to the case on hand as the case on hand is for admission to Higher Speciality courses were reservation is impermissible. For the said proposition, the learned counsel would extensively rely upon the judgment of the Preeti Srivastava case where the Supreme Court has held that there cannot be any reservation for Higher Speciality Courses. In that case, the Supreme Court, while upholding the lower qualifying marks for reserved categories viz., SCs, STs, OBCs for admission to postgraduate medical courses, held that there cannot be a wide disparity in qualifying marks between the reserved and general categories and the dilution has to be up to a reasonable extent. That was a case with fixation of 20% for reserved category and 45% for general category candidates as minimum qualifying marks and in that context, the Supreme Court has held that it affects the standards of education and therefore is contrary to the public interest under Article 15(4) of the Constitution. Of course that was also a case in respect of Post Graduate Medical Institution and not Higher Speciality courses. Nevertheless it must be kept in mind that the Supreme Court in Dr.PREETI SRIVASATAVA’S Case was considering only the fixation of minimum eligible marks and not the weightage of service to in-service candidates.

12. In my opinion, the law laid down by the Supreme Court in STATE OF M.P. VS GOPAL D. TIRTHANI would be applicable to the facts of this case. Even in that case, the allocation of 20% seats for in-service candidates for Post Graduate Courses was held not violative of Article 14. In fact, the Supreme Court distinguished the judgment of the Supreme court in Pradip Tandon’s case which provided reservation in favour of people in “hill areas” and Uttarakhand as constitutionally invalid. Their Lordships however observed that the said case was on reservation and not on weightage.

13. The weightage of one mark for each year of service cannot be considered to be a reservation as commonly understood and is made under Article 15(4) of the Constitution. It is the specific case of the State that the Doctors are reluctant to serve in rural areas. The service put in by Doctors serve in rural areas must therefore be given some weightage in admission to Higher Speciality courses for more than one reason. (1) They serve in rural areas, 2) Doctors with Higher Speciality is required for service in rural areas in future and 3) Doctors serving in rural areas do not have the modern facility attached to the government as well to the private specialized hospitals and to encourage the service doctors with Post Graduate qualification to serve in rural areas. These reasons have been taken into consideration by the Government to award one mark for each year of service up to the maximum of 10 marks. Though the weightage of one mark is upheld by the Supreme Court in the State of M.P’s case, the Court also cautioned that that weightage should not be irrational. Impermissibility of reservation in Higher Speciality Courses cannot be mixed up with weightage of service to in-service candidates who serve in rural areas. The power to award marks to service candidates who serve in rural areas must be traced to the power of the State to identify the source for admission. That apart, award of marks to in-service candidates would have the effect of altering the merit only as amongst candidates entering through the exclusive channel of admission meant for in-service candidates within over all service quota. In my opinion, the law laid down in State of M.P. Vs Gopal D. Tirthani is applicable to admission of candidates for Higher Speciality Courses as well.

14. Insofar as the submission to the discrimination, it must be kept in mind that in-service candidates serving in rural areas cannot be equated to the in-service candidates working in urban areas. Identification of in-service candidates working in rural areas for award of weightage of service has been made on intelligence differentia and only in regard to such of those doctors who serve in rural areas. The question of discrimination would arise only in act discrimination among the candidates who stand on par with each other. Such a decision of the Government cannot be the subject for scrutiny of this Court, as this Court should not enter upon into the exercise of power of review over the policy decision of the State Government.

15. For all the above reasons, all the Writ Petitions fail and the same are dismissed. No costs. Consequently, all connected W.P.M.Ps are closed.