WRITTEN NOTES BY MR.P.WILSON, SENIOR ADVOCATE ON BEHALF OF APPLICANT IN I.A. 26816 OF 2022 IN W.P. (CIVIL) NO. 53 OF 2022 AND RESPONDENT NO.9 IN SPECIAL LEAVE PETITION(CIVIL) NO. 2514 OF 2022. Mbbs Super speciality case

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
IA. NO.26816 OF 2022
IN
WRIT PETITION (CIVIL) NO. 53 OF 2022
&
SPECIAL LEAVE PETITION (CIVIL) NO. 2514 OF 2022

IN THE MATTER OF:
DR. N. KARTHIKEYAN & ORS. … PETITIONERS
VERSUS
THE STATE OF TAMIL NADU & ORS …RESPONDENTS

IN THE MATTER OF:
DR. A.RAMALINGAM
ASSOCIATE PROFESSOR,
DEPARTMENT OF EMERGENCY MEDICINE,
GOVT. VELLORE MEDICAL COLLEGE ,
VELLORE – 600 014 …APPLICANT/INTERVENOR

WRITTEN NOTES BY MR.P.WILSON, SENIOR
ADVOCATE ON BEHALF OF APPLICANT IN I.A. 26816
OF 2022 IN W.P. (CIVIL) NO. 53 OF 2022 AND
RESPONDENT NO.9 IN SPECIAL LEAVE
PETITION(CIVIL) NO. 2514 OF 2022.

PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE APPLICANT: G. INDIRA

INDEX
Sl.
No. Particulars Page Nos.
1. Written Notes by Mr.P.Wilson,Senior Advocate on behalf of Applicant in I.A.No.26816 of 2022 in W.P. (Civil) No.
53 of 2022 and Respondent No.9 in Special Leave Petition (Civil) No.2514 of 2022.

1-14

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
IA. NO. 26816 OF 2022
IN
WRIT PETITION (CIVIL) NO. 53 OF 2022
&
SPECIAL LEAVE PETITION (CIVIL) NO. 2514 OF 2022

IN THE MATTER OF:
DR. N. KARTHIKEYAN & ORS. … PETITIONERS
VERSUS
THE STATE OF TAMIL NADU & ORS …RESPONDENTS

IN THE MATTER OF:
DR. A.RAMALINGAM
ASSOCIATE PROFESSOR,
DEPARTMENT OF EMERGENCY MEDICINE,
GOVT. VELLORE MEDICAL COLLEGE ,
VELLORE – 600 014 …APPLICANT/INTERVENOR

WRITTEN NOTES BY MR.P.WILSON,SENIOR ADVOCATE ON BEHALF OF APPLICANT IN I.A.NO. 26816 OF 2022 IN W.P. (CIVIL) NO.53 OF 2022 AND
RESPONDENT NO.9 IN SPECIAL LEAVE
PETITION(CIVIL) NO. 2514 OF 2022.

1. The Writ Petition (Civil) No.53 of 2022 as well as the above said SLP (Civil) No.2514 of 2022 challenge is made mainly on the following grounds:

(a) GO MS NO 462 dated 7.11.2020 granting in-service reservations at 50% to super specialty courses is unconstitutional and violative of Art 14 as it classifies candidates at the level of super specialty in to in-service candidates and others and it is impermissible in the light of Dr. B Preethi
Srivastava vs. State of MP (1999) 7 SCC 120

(b) Disproportionate seats i.e., 50% of seats will be kept away from persons who are not government service.

(c) Such classification is arbitrary and unreasonable.

(d) The Judgement of constitutional bench in Tamil
Nadu Medical Officers Association vs. Union of India (2021) 6 SCC 568 is not an authority for the proposition that at the level of super specialty inservice reservation can be granted

(e) That as per Dr. B Preethi Srivastava (supra) there cannot be communal reservation at the level of Super specialty as no dilution of merit is permissible

(f) It has been held in Dr. Pradeep Jain vs. Union of India 1998 (3) SCC 654 that reservation in PG Course is altogether impermissible.

(g) In Indra Sawhney Vs Union of India (1992 Supp (3)SCC page 217 in specialties and super specialties in medicine, merit alone must prevail and there should not be any reservation of posts.

(h) In Saurabh Chaudri (2003) 11 SCC 146,this court has held that the higher the level of super specialties the rule of equal chance for equal marks dominates. This view equally applies to all super specialty institutions.

(i) The state has no power under List III entry 25 to bring in GO MS No 462 dated 7.11.2020
(j) The brochure does not provide reservation for inservice candidates for admission to super specialty courses and therefore there cannot be change in the rules of the games once the game has started.

(k) The admissions under GO Ms No 462 are not based on merit.

2. That the intervenor in WP (C) No 53 of 2022 is working as Medical Officer in the cadre of Associate Professor under Directorate of Medical Education in Tamil Nadu Medical Service in Vellore medical college for more than 15 years, qualified with PG Medical degree submitted an application for admission to higher specialty courses became entitled to claim admission under separate channel as service candidate herein referred as in-service candidates , that was followed by the State of Tamil Nadu in the matter of admission to higher Specialty Courses till the year 2016 (prior to Dinesh Singh Chauhan case) as per the constitutional bench Judgment of this Hon’ble court in Tamil Nadu Medical Officers Association and Others -Vs- Union of India and Others dated
31.08.2020 Writ Petition (Civil) No.196 of 2018 ( 2021(6)SCC Page 568). The proceedings originated from five states, being Haryana, Kerala, Maharashtra, West Bengal and Tamil Nadu and the said States have subsisting provisions for reservation of in-service doctors on the basis of different forms of statutory instruments, and this Hon’ble has held that the State is authorized to earmark 50% of seats for in-service candidates in admission to PG Medical courses.

3. This in-service reservation in PG courses including Super
Specialty courses was followed till the year 2016 in Tamil Nadu, prior to the pronouncement of State of Uttar
Pradesh v Dinesh Singh Chauhan 2016 9 SCC 749 .
Therefore, consequent to the orders passed by this Hon’ble Court, representations have been submitted through Association requesting to allow 50% Service Quota for DM/MCh in Tamil Nadu in the admission for the academic year 2020-2021 by making necessary notification to National Board of Examinations and a WP No 14643 of 2020 was filed praying for in-service reservations.

4. That Hon’ble Madras High Court vide Judgment dated 09.11.2020 disposed of W.P.No.14643 of 2020 filed by similarly situated in service doctors after accepting the submissions of the Government of Tamil Nadu for providing 50 % seats reservation to in service candidates this academic year 2020-2021 through GO 462 dated 7.11.2020.

5. That Madras High Court order was challenged before this
Hon’ble court in Dr Prerit Sharma and others v. Dr
Billu BS in Civil Appeal No 3840/2020 reported in 2020 SCC Online SC 977. This Hon’ble Court by an order dated 27/11/2020 directed the Council not to provide reservation of 50% to in-service candidates for the academic year 2020-21 only as the admission was in advance stage.

6. In W.P. No. 509/2022 Dr. D. Suresh Additional Doctor v. The Government of India (Page 6), the order dated
12.01.2022 which is subject matter of challenge in SLP No 2514 of 2022, The Madras High Court directed the respondents to allocate 50% seats for in-service candidates as per G.O. M.s. No. 462 dated 07/11/2020 for the academic year 2021-2022.

7. The following issues have arisen for consideration:

a) Whether the Judgment in K. Duraisamy & Ors. –Vs- State of Tamil Nadu reported in 2001 (2) SCC Pg. 538 (3 judge bench) covers the issue of quota for inservice candidates in Super Specialty courses also?

b) When the Constitutional Bench decision in Tamil Nadu Medical Officers Association vs. Union of India (2021) 6 SCC 568 approves the ratio laid down in K. Duraisamy (supra) and holds that reservation in PG is well within the State’s legislative competence under Entry 25 list III and that it subserves the constitutional goals, therefore Writ Petition and SLP’s are liable to be dismissed.

c) Whether the Post Graduate Medical Education Regulations (2000) framed under Section 33 of Indian Medical Council Act, 1956 which is traceable under entry 66 List I has power to make any provisions for reservations, more particularly for in-service candidates as done by under Impugned Tamil Nadu GO Ms.462 dated 7.11.2020, in exercise of power under entry 25 list III ?

d) Whether Regulation 9 of MCA Regulations 2000, affects the legislative competence and authority of the state to make provisions providing for separate source of entry for In-service candidates in Super Specialty Courses?

e) Whether prescription of quota relating to in-service candidates can be treated on par with Communal Reservations and Whether the Judgment in Dr. B
Preethi Srivastava (supra( has dealt with the issue
of quota for in-service candidates in super specialty course? And if so, what was the issue before this Hon’ble Court in Dr. B Preethi Srivastava?

f) Whether Ratio decidendi of a Judgment has to be found only after reading of the entire judgment or the conclusions of the judgments? Whether judgment can be read as a statute? (Please, see Islamic Academy of Education –Vs- State of Karnataka 2003 (6) SCC
Page No.697 (Para 2 & 139)

8. HISTORY OF IN-SERVICE RESERVATION:
i. In the State of Tamil Nadu, the in-service reservations were provided up till 2016 when this
Hon’ble court in the case of State of UP v. Dinesh
Singh Chauhan 2016(9) SCC Page 749 in
Paragraph 24 interpreted the Regulation 9 stating that it was a complete code by itself and state has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to post graduate medical courses enunciated by the central legislation and regulations framed thereunder central regulation and legislations must prevail.
ii. Prior to 2016, in Tamil Nadu, the reservation of 50% for in-service candidates in MDS and Super Specialty courses was granted. However, in the year 1999 when it was granted for the academic year 19992000 vide GO Ms No 55 dated 9.2.1999, the same was challenged before the Madras High Court and full bench of Madras High court up held the validity of the aforesaid GO by order on 1.10.1999. This was put to challenge before this Hon’ble court. This Hon’ble court (3 Judge bench) in the case reported in 2001(2) SCC page 538 K Duraisamy Vs State of Tamil Nadu confirmed the full bench judgment and upheld the grant of 50% of in-service reservation even in super specialty courses (Paragraph 2,3, 11 – reference to super specialty courses). – It was held at Paragraph 12 in K Duraisamy that scheme is not a mere reservation but is one of classification of the sources from which admissions have to be accorded. Thus, classification of in-service candidates is up held.
iii. Grant of in-service reservation in the State of Madhya Pradesh was upheld in State of M.P. Vs
Gopal D Tirthani – 2003(7) SCC page 83 –
Paragraph 27 – The object of reservation; Paragraph 36(1) – it was stated that in-service reservation was a separate and exclusive channel of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Such two channels of entry or two sources of admission is a valid provision
iv. MCI Regulation 9 was amended on 15.2.2012 and made applicable from Academic year 2013-2014.
v. In State of UP v. Dinesh Singh Chauhan (2016) 9 SCC Page 749 at Paragraph 24 this Hon’ble Court interpreted regulation (9) and said it is a complete code by itself and state has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to post graduate medical courses enunciated by the central legislation and regulations framed thereunder central regulation and legislations must prevail.
vi. Post Dinesh Singh Chauhan (supra), the State of Tamil Nadu stopped giving in-service reservation from 2016 onwards.
vii. The Tamil Nadu Medical Officer’s Association filed a writ petition W.P. no 196/2018 before this court. This case was referred to a larger constitutional bench in 2018(17) SCC Page 478 doubting the ratio laid down in State of UP v. Dinesh Singh Chauhan in 2016(9) SCC Page 749 that Regulation 9 is a complete code and that State has no powers to exercise under List III entry 25.
viii. The Constitutional bench of this Hon’ble Court in Tamil Nadu Medical Officers Association (supra) has set aside the finding given in State of UP v. Dinesh Singh Chauhan 2016(9) SCC Page 749 and held that State has power under List III and entry 25 to legislate and the in-service reservations were restored for PG Courses.
9. LEGISLATIVE COMPETENCE OF UNION:
a) Power of central government under list I Entry 66 is restricted to the extent of determining the standards
of Education and not with regard to admissions. Paragraph 10.3 ,11.2 of TN Medical officers Association (supra)
b) Paragraph 134 of Modern Dental College and Research Centre and Ors. Vs. State of Madhya Pradesh (2016 (7)SCC Page 353 judgment stated that State’s power to legislate in relation to “education, including technical education, medical education and universities” is analogous to that of the Union.

c) In para 101, the Constitutional Bench had held that under Entry 66 List 1 has a specific and limited scope and for prescribing the standards of institutions of higher learning, exclusive domain has been given to the Union. However, that would not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc. It was noted that earlier education, including universities, was the subject-matter of List II Entry 11 [ “11. “Education” including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III”]. However, this entry was omitted by the Constitution (Forty-second Amendment) Act, 1976 and was transferred to the Concurrent List and in the process technical and medical education was also added. If sole power for regulating admissions is also provided to the Union, it may render Entry 25 completely otiose.

d) Power of the Union under Entry 66 of the Union List, is limited to prescribing standards of higher education to bring about uniformity in the level of education imparted throughout the country. The scope of Entry 66 must be construed limited to its actual sense of “determining the standards of higher education” and not of laying down admission process. In no case is the State denuded of its power to legislate under List III Entry 25. More so, pertaining to the admission process in universities imparting higher education. (see para 148 of Model Dental College.
10. LEGISLATIVE COMPETENCE OF STATE:
a) In TN Medical Officers Association (supra), this Hon’ble Court held that under List III Entry 25 of the Constitution, the State holds the legislative competence to provide for a separate source of entry for in-service candidates in PG courses.

b) The power of the State is mentioned under List III entry 25 in Paragraph 12.1, 13.5, page 646 and Para 14.8 TN Medical Officers Association (supra)

c) The Constitutional requirement is compiled by the state under Article 21, 47 for paragraph in 17.4
17.10 18 of TN Medical Officers Association (supra)

d) 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 [paragraph 8 of K Duraisamy Vs State of TN 2001(2) SCC 538]

e) In para 149, the Constitutional Bench in Modern Dental college and Research Centre and ors vs state of Madhya Pradesh (supra) held that the State being responsible for welfare of students community and field of higher education being one such filed, the state government should be the sole entity to lay down the procedure for admission and fees etc governing the institutions running in that particular state except centrally funded institutions as no one could be better judge of requirements and inequalities in the opportunities of the people. Only the state legislature can create equal level playing field.

f) Justice Aniruddha Bose in TN Medical Officers Association (supra) Page 568 in Paragraph 83.2, 90, 91,95 states that no deviation if in-service given.

11. THE ACTION OF THE STATE GRANTING “IN SERVICE
RESERVATION” IS NOT CONSIDERED AS COMMUNAL RESERVATION WHEREAS IT IS A CREATION OF A SEPARATE SOURCE OF ENTRY:
(a) In State of MP v. Gopal D. Tirthani (2003) 7 SCC 83, the Court held that it is permissible to grant in service reservation and that it is separate and exclusive channel of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Such two channels of entry or two sources of admission is a valid provision. (Paragraph 36.1)

(b) K. Duraiswamy (supra) has approved the in service reservation at the level of super specialty and approved the policy of state to have scheme or pattern of two sources of candidates based upon a broad classification in two categories i.e. in-service candidates and non-service or private candidates with each one of them allocated exclusively for their own respective category of candidates 50% of the seats (para 11) that the term ‘reservation’ doesn’t always refer to communal reservation but provides a separate entry for the in-service candidate’s class.
(Paragraph 12)

(c) As per TN Medical Officers Association (supra), the allocation of seats in the form of fixation of quota is not to be equated with communal reservation.

12. NECESSITY AND OBJECT FOR GIVING SEPARATE RESERVATION FOR IN SERVICE CANDIDATES:
(a) Paragraph 12 in K. Duraiswamy v. Union of India 2001 (2) SCC 538, mention that this separate source of entry for in-service candidates will allow for these candidates to pursue higher and advanced education in specialized fields in order to improve their professional skills for the benefit of the patients to be treated in medical institutions where these in-service candidates are expected to serve.

(b) In TN Medical Officers Association (supra) this Hon’ble Court mentioned that the in-service candidates are unable to concentrate on theoretical studies for exams because they work in remote areas for long hours. This separate source of entry allows a platform for them to equally compete with the non-service candidates.

(c) Object for such in-service Reservation is seen in
Paragraph- 17

(d) The in-service candidates may have been away from academics and theories because of being in service. Still they need to be assessed as eligible for entrance in PG. For taking up such examination, they must either keep updating themselves regularly or concentrate on preparatory studies to entrance examinations but without sacrificing or compromising with their obligations to the people whom they are meant to serve on account of being in state services.
(Paragraph 27 Gopal D. Tirthani (supra))

(e) Laudable purpose is seen in TN Medical Officers
Association at Paragraph 14.8 wherein this Hon’ble Court had noted that by making special provisions for in-service candidates, a laudable purpose is sought to be achieved as the in-service candidates on attaining higher academic achievements would be available to be posted in rural areas.

13. REASONABLE CLASSIFICATION AND GOALS OF THE CONSTITUTION:

(a) K Duraisamy Vs State of TN 2001(2) SCC page 538, paragraph 12.

(b) State of MP Vs Gopal D Tirthani (2003(7) scc page 83 paragraph 21 – There is a reasonable nexus between the classification and the object sought to be achieved.

(c) At paragraphs 17, 17.1, 17.2 of Tamil Nadu
Medical Officers Association (Supra) this Hon’ble Court held that the State providing a separate source of entry for in-service candidates is a reasonable and a legitimate basis of providing incentives to in-service candidates and it helps to achieve several constitutional goals such as right to health for rural areas under Article 21 of the Constitution of India.

(d) In Paragraph 17.10 of the same judgment states that in a federal structure, even the State has the constitutional directive to uplift the Scheduled Castes, Scheduled Tribes and socially and educationally backward classes and there is no bar on the State to provide affirmative action in order to achieve these constitutional goals

(e) In Modern Dental college and Research Centre and ors vs state of Madhya Pradesh the constitutional bench of this Hon’ble court has held at paragraph 171 and 172 that under Art 47, the State has a primary duty to improve the public health of the predominant duty to maintain the medical facilities to the people in the State and that Art 39(e)(f) and Art 42 cast obligations on the state to ensure health and strength of workers men and women, ensure opportunities and facilities to develop in a healthy manner. The right to life includes right to life includes right to health. This Hon’ble court in Modern dental college. This Hon’ble court further held that maintenance and improvement of public health and to provide health care and medical services is a constitutional obligation of the state. To discharge this obligation, the State must have Doctors with professional excellence and commitment who are ready to give medical services to the public at large.

14. THIS ACTION WOULD NOT ATTRACT REPUGNANCY:
a) In Paragraph 90 and 91 in Tamil Nadu Medical Officers Association (Supra), the Hon’ble Court held that if the State has provided a separate source of entry for in-service candidates using their own merit list, then it would not attract any form of repugnancy with the 2000 MCI Regulations to create such a channel of entry.

15. REGULATION 9.4 OF THE MCI REGULATIONS, 2000 IS NOT A COMPLETE CODE:

(a) In Paragraph 20 and 21 in Tamil Nadu Medical Officers Association (Supra) this Hon’ble Court held that the contention that Regulation 9 in MCI Regulations, 2000 is in complete code as mentioned in Dinesh Singh Chauhan (Supra) cannot be accepted and is held to be not a good law.

16. NO BAR IN RESERVATION IN REGULATION 9 OF MCI REGULATIONS, 2000:
(a) In Paragraph 95 in Tamil Nadu Medical Officers Association (Supra), this Hon’ble Court held that there is no bar in regulation 9 of MCI Regulations, 2000 in order to provide reservations for in-service candidates in medical admissions.

(b) Paragraph 97 of the same judgment state that the State has the right form a policy of making in-service doctors who obtain entry in post-graduate medical degree courses through independent in-service channel execute bonds for such sum the respective States deem fit and appropriate.

17. That it is submitted that the allocation of seats for inservice candidates is only a separate and exclusive channel of entry or source of admission and such entry- path cannot be equated with reservation provisions incorporated as compensatory discrimination.

18. That it is submitted that the action of the State to provide for the in-service quota is in the discharge of its positive constitutional obligations to promote and provide better health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialized health care facility. Such action is in discharge of its constitutional obligations as provided in Article 47 of the Constitution of India, which is the corresponding fundamental right of the citizens protected under Article 21 of the Constitution of India.

19. That it is submitted that this Hon’ble Court in
Association of Medical Superspeciality Aspirants &
Residents -Vs- Union of India reported in (2019) 8 SCC 607 that

“25. It is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation by opening government hospitals and health centers, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities to employ best of talents and tone up its administration to give effective contribution, which is also the duty of the government.

20. Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities.

21. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

22. That it is submitted that the power of the State under Entry 6 of List II of Schedule VII to legislate in the subject matter of public health and hospital is exclusive.

23. It is submitted that by providing any reservation of seats in Super- Specialty courses, there shall be no national waste of these precious seats and will neither dilute the high standards of medical education nor affect the quality of expert doctors pursuing Super-Specialty courses mainly because in-service reservation brings on board experienced doctors who are already in the field of medicine for quite some time and have been serving the people at large. Their plethora of knowledge cannot be compared to that of someone who has no practical experience at all. Infact, the in-service candidates will be a boon to the public at large instead of a national waste.

• Dr. Pradeep Jain and others 1984 (3) SCC 654 didn’t deal with communal reservation in All India quota. Rather it was about Percentage of Domicile Reservations.
• In Dr. Pradeep Jain (supra) it did not hold that reservation in PG Course is altogether impermissible. But in Dr. Preeti Srivastava (supra) this court was not concerned with the issue of Reservation of PG courses rather it was concerned with the question whether it is permissible to prescribe a lower minimal percentage of qualifying marks for the reserved candidates in comparison to general category.
• In Dr. Preeti Srivastava (supra) in Paragraph 78 it was held by this Hon’ble court that the Minimum qualifying marks will not be permissible under Article 15(4) of The Constitution of India if it is set below the for 50%.
• In Dr. Preeti Srivastava (supra), this Hon’ble Court was not concerned with the issue of reservation in PG courses; rather it was concerned with the question whether it is permissible to prescribe a lower minimum percentage of qualifying marks for reserved category candidates in comparison to the general category candidates. See Para 41 of Neil Aurelio Nunes v Union of India 2022 SCC Online 75
• The judgement of Indra Sawhney cannot come to the rescue of the Petitioners because at the time it was pronounced i.e. on 16th November 1992, the 93rd Constitutional Amendment did not exist as it was with effect from 20th January 2006 and further the Central Educational Institutions (Reservation in
Admission) Act, 2007 came into force only on 3rd January 2007. Therefore, a judgement passed prior to the 93rd Constitutional Amendment cannot be relied upon.

DATED:03.03.2022 FILED BY

INDIRA
ADVOCATE ON RECORD FOR THE APPLICANT

SETTLED BY:
P.WILSON,SR.ADVOCATE

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