IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2022

CORAM :

THE HONOURABLE MR. JUSTICE PARESH UPADHYAY

AND

THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP

W.A.Nos.93 & 94 of 2022

and C.M.P.Nos. 784,787,789,790,791 and 794 of 2022

W.A.No.93 of 2022

Dr.Parkaviyan R.

S/o J. Rajendran

E1/NA, Murugan Koil Street,

Sethiyathope (PO), Cuddalore District – 608 702   .. Appellant

vs

1.The State of Tamilnadu

Rep. By Its Principal Secretary to Government,

Health And Family (MCA-1) Department,

Fort St. George,    Chennai-600009.

2.The Director Of Medical Education,    Directorate Of Medical Education,    Kilpauk, Chennai-600010.

3.The Selection Committee

Rep. By Its Secretary,

Directorate Of Medical Education,

162,Periyar E.V.R. High Road,    Kilpauk,

Chennai-600010.

4.National Medical Commission

Rep. By Its Secretary,

Pocket 14,Sector-8, Dwarka Phase I,    New Delhi-110077.

5.Dr.S.Muhamed Mujamil

67, Makthummaraikayer Street,     Vandavasi,Thiruvanamalai District.

6.Dr.Maharajan

S/o. P.Palraj,

No.1, House Of Sharon    Rifle Range, Kotagiri,    Nilgiris-643217.

7.Dr. Vaishnavi

D/o.Veeramani A.

8/234, Neelakottai Road,

Gudalur, Nilgiris District-643211.

8.Dr.J.Ragav

No.8/12, Murugaplillai Nagar Main Street,

Kumananchavadi,    Poonamalee,    Chennai-600056.

9.Tamil Nadu Medical Officers Association,

25,MRJ Complex,Thirukkanurpatti, Nalroad,    Vallam Main Road,    Thanjavur-613 303.

10.Dr.K.Kaushik

S/o. Kamaraj, G.B.

Tower 14,Prestige Bella Vista,

Katupakkam,

Chennai-600056.          .. Respondents

W.A.No.94 of 2022

1.Parkaviyan R.

S/o.J.Rajendra,

NE1/Na Murugan Koil St,

Sethiyathope (Po), Cuddalore Dist- 608 702.

2.Sellakannu

S/o.Chandrasekar,    Vellampatti Village, Harur Tk,    Dharmapuri Dist-636 903.

3.Jawahar S.R.

S/o.S.Rathinakumar,

277A, Velur Road,

Pothanur,  P.Velur(Tk),   Namakkal Dist- 638 182.

4.Karthick Raja S.

S/o.Subramanian R.

36,Nalliyampalayam Pudur,

Velur Post P.Velur (Tk),    Namakkal Dist- 638 182.

5.S.Sooraj Azarudeen

S/o.N.Siddiq D-199/17W   Dr.Ambedkar Street,   Cumbum, Theni Dist- 625 516.

6.Arun Saravana

S/o.K.Saravanan,

New Java Nagar, Alapuram,

Menasi Post, Pappireddipatti (Tk).   Dharmapuri Dist- 636 904.

7.P.R.Jenifer Paul

D/o.T.Paul Mony Paul Bhavan

Kodithara Vilai Keezhkulam Post,    Kanyakumari Dist- 629 193.

8.Dhanvarshraaju C.

S/o.A.Chandrasekaran,

No.12. 14th Ward,Teachers Colony,

Tharamangalam,    Omalur Tk,

Salem- 636 502.

9.Fazil Arif M.

S/o.N.Mohamed Hawood,

75, Madurai Road,    Manapparai Tk,    Trichy Dist- 621 306.

10.Baranidharan

S/o.C.Rajendran,

48C,Nag Colony,Jayankondam,     Ariyalur Dist- 621 802.

11.Souther V.C.

S/.N.Chinnaswamy,

1/122,Omshakti Kovil Street,     P.Vellalapalayam,Gobi,     Erode-638 476.

12.Sathis Kumar G.

S/o.Gunasekaran

16/1,Dr.Jeena Complex,

Pudunagar 2nd Cross,

Kuttalam,

Mayiladuthurai- 609 801.         .. Appellants

Vs

1.The State Of Tamil Nadu

Rep. By its Principal Secretary To Govt,    Health And Family (MCA-1) Dept,    Fort St. George, Chennai – 9.

2.The Director Of Medical Education,    Directorate Of Medical Education,    Kilpauk, Chennai-10.

3.The Selection Committee

Rep. By its Secretary,

Directorate Of Medical Education,    162, Periyar E.V.R.High Road,     Kilpauk, Chennai- 10.

4.National Medical Commission

Rep.By Its Secretary, Pocket 14, Sector-8,   Dwarka Phase I,   New Delhi-110 077.

5.S.Muhamed Mujamil    67,Makthummaraikayer Street,    Vandavasi, Thiruvanamalai Dist.

6.Maharajan

S/o.P.Palraj,

No.1.House Of Sharon Rifle Range,    Kotagiri, Nilgiris-643 217.

7.Vaishnavi

D/o.Veeramani A.

8/234, Neelakottai Road,    Gudalur, Nilgiris Dist-643 211.

8.J.Ragav

No.8/12,Murugapillai Nagar Main St,

Kumananchavadi,    Poonamalee,    Chennai- 56.

9.Tamil Nadu Medical Officers Association,

25,MRJ Complex, Thirukkanurpatti, Nalroad,    Vallam Main Road,

Thanjavur- 613 303.

10.K.Kaushik

S/o.Kamaraj G.B. Tower 14,

Prestige Bella Vista,

Katupakkam, Chennai- 56.   .. Respondents

Appeals preferred under Clause 15 of Letters Patent against the order dated 19.01.2022 made in W.P.Nos. 22937 & 25749 of 2021.

For Appellant(s) :	Mr.Suhrith Parthasarathy (in both appeals)
For Respondent(s):	Mr.J.Ravindran, AAG assisted by Mr.C.Jayaprakash, Government Advocate for R1 to R3

(Ms.Shubharanjani Anand for R4)

 

Mr.P.Wilson, Senior Advocate for M/s.P.Wilson Associates for R5,R8 and R9

Mr.Issac Mohanlal, Senior Advocate for M/s.Issac Chambers for R6 & R7

Mr.E.Manoharan for R10

(private respondents in both appeals – on caveat) COMMON JUDGMENT

(Delivered by PARESH UPADHYAY, J.)

1. Challenge in these appeals is made to common judgment and order dated 19 January 2022 recorded on W.P.Nos. 22937 and 25749 of 2021. These appeals are by unsuccessful writ petitioners.
2. The dispute is with regard to admissions in Post Graduate Medical Courses in the State of Tamil Nadu under the State Quota seats, starting from the academic year 2021-2022. The contest is between Open Category Doctors vis-a-vis in-service Doctors who are competing with additional weightage of marks in their merit, on the

basis of their place of work in remote / difficult / hilly / rural areas.

3. The appellants are Open Category candidates i.e. those doctors who are not in Government Service. Challenge is to the policy of the State regulating these admissions, as reflected in stipulation

No.29(c) of the Admission Prospectus for the academic year 2021-

2022. The impugned stipulation Rule 29 (c) reads as under:-

“Out of 50% of the 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 as per the decision of the Committee headed by Hon’ble Thiru A.Selvam, High Court Judge (Retd.) constituted based on the orders of the Hon’ble Division Bench of High Court of Madras, in W.A.Nos. 1051, 1117 to 1124 of 2018 in W.P. Nos.

7231, 7857 to 7861, 8116 and 8117 of 2018.”

4. We have heard Mr.Suhrith Parthasarathy, learned advocate for the appellants, Mr.Ravindran, learned Additional Advocate General for the State Authorities and Mr.P.Wilson, learned Senior Advocate for the private respondents (in-service Doctors) at substantial length. We note that we have heard them for the whole day on 25.01.2022 and to some extent today (27.01.2022) also.

5.1 Learned advocate for the appellants has submitted that, the impugned stipulation 29(c) [as quoted in para : 3 above]

providing for earmarking of seats for in-service candidates, that too to the extent of 50% of State Quota is illegal and further that, having already provided for the said 50% reservation for in-service doctors, further allowing them to compete in open category, that too with additional weightage of marks in merit, on the basis of their place of work in remote / difficult / rural areas, is illegal. It is submitted that even if the Court was to hold that the State does have power to do what it has, the cumulative effect of (i) providing separate quota for in-service Doctors in Post Graduate admissions and (ii) further allowing them to compete in open category would lead to a situation that no seat would be left, which in true sense can be said to be available for being filled in on merits. It is submitted that such a situation is unsustainable if tested on the touchstone of reasonable classification under Article 14 read with 19(1)(g) and 21 of the Constitution of India. In support of this submission, learned advocate for the appellants has extensively taken this Court through the contents of the impugned stipulation and unsustainability thereof visa-vis various pronouncement of the Supreme Court of India, as per the say of the appellants. Specific reference is made to the decisions

 

of the Supreme Court of India in the case of (i) State of M.P & others v Gopal D.Tirthani & others reported in (2003) 7 SCC 83 and (ii) K.Duraisamy & another v State of T.N. & others reported in (2001) 2 SCC 538. These decisions are attempted to be reconciled with the subsequent decision of the Constitution Bench of the Supreme Court in the case of  Tamil Nadu Medical Officers Association and others v Union of India and others reported in (2021) 6 SCC 568, to contend that the challenge to the impugned stipulation 29(c) is still open for

judicial scrutiny.

5.2 Over and above the three decisions noted above, the compilation of the judgments submitted on behalf of the appellants

also include the following:-

• Pre-PG Medical Sangharsh Committee v Dr.Bajrang Soni & Ors reported in (2001) 8 SCC

694

• State of T.N. v Dhilipkumar and others reported in (2001) 8 SCC 700
• Satyabrata Sahoo and others v State of

Orissa and others reported in (2012) 8 SCC 203

• State of Uttar Pradesh and others v Dinesh

Singh Chauhan reported in (2016) 9 SCC 749

• Nikesh Tarachand Shah v Union of India

reported in (2018) 11 SCC 1

• Internet and Mobile Association of India v

Reserve Bank of India reported in (2020) 20 SCC

274

(vii)Index Medical College v State of Madhya

Pradesh reported in 2021 SCC Online SC 318 (viii)State of Tamil Nadu v Dr.P.Pravin & others reported in (2018) 5 MLJ 791

5.3 It is submitted on behalf of the appellants that the impugned stipulation 29(c) be quashed and set aside by allowing

these appeals.

6.1 Learned Additional Advocate General has addressed the Court at length, on behalf of the State authorities. It is submitted by him that, the State in its wisdom has thought it necessary to provide for separate quota for in-service Doctors considering the requirement of poor people in the remote and hilly areas of the State and any interference by this Court would adversely affect the welfare of citizen and therefore the same be not done by this Court. It is further submitted that the appellants have not even challenged the G.O.No. 463 dated 07.11.2020 and therefore it is not even open to the

appellants to assail the stipulation 29(c). It is submitted that these appeals be dismissed.

6.2 In support of his submissions, learned Additional Advocate General has extensively taken this Court through the

contents of the counter filed on behalf of the State dated 01.11.2021, with specific reference to the factors taken into consideration by the State before formulating the policy under challenge. It is submitted that only after due application of mind and on the basis of the recommendation of the Committee headed by retired Hon’ble Judge of High Court and after having opinion of the highest law officer of the State, the said decision is taken and there is no material to interfere

in it. It is submitted that these appeals be dismissed.

6.3 Learned Additional Advocate General has relied on the decision of the Constitution Bench of the Supreme Court in the case of  Tamil Nadu Medical Officers Association and others v Union of India and others reported in (2021) 6 SCC 568 to contend that these

appeals need to be dismissed.

7. Wilson, learned Senior Advocate for the private

respondents (in-service Doctors) has submitted that the challenge to the impugned stipulation 29(c) needs to be rejected since the State is well within its right to provide for separate source of entry for inservice Doctors and further that additional weightage of marks is only to define the merits of in-service Doctors as provided by proviso to Regulation 9(4) of MCI Regulations and therefore no interference be made by this Court. It is also submitted that there can not be two different merit lists for in-service Doctors for separate sources of entry in Post Graduate Medical Courses.  He has also relied on the decision of the Constitution Bench of the Supreme Court in the case of  Tamil Nadu Medical Officers Association and others v Union of India and others reported in (2021) 6 SCC 568. Reliance is also placed on the latest reportable decision of the Supreme Court in W.P.(c) No. 961 of 2021 dated 20.01.2022 and cognate matters ( Neil Aurelio Nunes and Ors.  V Union of India and others). It is noted that along with the State Authorities, on behalf of private respondents also an objection is taken to the effect that in absence of any challenge to the Government Order G.O.No. 463 dated 07.11.2020, the impugned policy of the State can not be tested by the Court.  It is submitted that these appeals be dismissed.

8. We note that, along with learned advocates for the respective parties as noted above, some other learned advocates were also heard by us, who have made / attempted to make the

submissions on the line of learned advocate for the appellants (in the C.M.Ps for impleadment), or had adopted the arguments of learned additional advocate general and / or learned Senior Advocate for the in-service Doctors. Since the arguments are already noted above under all the three different heads, these additional arguments are

not separately noted / discussed.

9.1 We note that the G.O. No.463 dated 07.11.2020, by which additional weightage of marks in merit to in-service Doctors is given, on the basis of their place of work is not separately under challenge. This was noted by learned Single Judge also, in para : 49 of the impugned judgment. Inconsequence thereof is also noted by learned Single Judge in that very para.

9.2 It is also noted that, while learned advocate for the appellants was addressing the Court assailing the impugned

stipulation 29(c) quoted above, attention of the Court was invited, on behalf of the State so also private contesting respondents, to contents of para : 5 of the impugned judgment to contend that, it is not open to the appellants to continue with the challenge to impugned stipulation 29(c) in totality, since it was conceded before learned Single Judge to the extent that the petitioners have no grievance insofar as reservation of 50% of in-service candidates is concerned and also the weightage granted to the in-service candidates for

rendering service in remote/ difficult /hilly / rural areas.

9.3 Though learned advocates for the contesting respondents may be justified in their above noted objection / submission, we have permitted learned advocate for the appellants to address the Court without any restriction, including qua some observations in para : 5 of the impugned judgment which may appear as concession on behalf of the writ petitioners. While permitting the learned advocate for the appellants to address the Court with this leeway, we also note the objection on behalf of the State and the private respondents in this regard. When a policy decision of the State is under judicial scrutiny, we deem it proper to allow the citizen to vent their grievance without any restriction. Further, it would be unfair to the State also, if its policy is tested in piecemeal manner.  Keeping these parameters in view, we have heard and considered the grievances and defences on behalf of the respective parties qua the impugned stipulation 29(c) in

its totality.

10. On conjoint consideration of the above, while examining the sustainability of the impugned stipulation 29(c), it needs to be ascertained by this Court :- (i) is it permissible for the State to provide for separate quota for in-service Doctors in Post Graduate admissions, from within the State Quota seats, (ii) having already provided for separate quota for in-service Doctors, is it permissible for the State to further allow them (in-service Doctors) to compete in open category – that too with additional weightage of marks in merit, on the basis of their place of work in remote / difficult / hilly / rural areas and (iii) whether the extent of reservation i.e. earmarking 50% of the seats available under the head of State Government quota is sustainable, testing it on the parameters of reasonableness and

doctrine of proportionality.

11.1 So far competence of the State to provide for separate quota for in-service Doctors in Post Graduate admissions is

concerned, it need not be seen as reservation for in-service Doctors, but it needs to be seen as separate source of entry in the medical education by the State. The said power is derived by the State from Entry 25 of Schedule VII of the Constitution of India. This issue is considered by the Constitution Bench of the Supreme Court in the case of  Tamil Nadu Medical Officers Association and others v Union of India and others reported in (2021) 6 SCC 568. After taking note of

Entry 25 of Schedule VII of the Constitution of India, the Supreme Court made declaration by the said judgment and Para 17.10 and 90

thereof are relevant for this purpose, which read as under:- “17.10 In the federal structure, the State, as well as the Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially (sic educationally) backward classes. Therefore, the State Government has the right to provide reservation and in the field of

employment and education, looking to the

specific/special need of public requirement in the particular area. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the

goal. Therefore, by allotting a specific percentage within its State quota and to provide preferential treatment to a particular class, cannot be said to

be beyond the legislative competence of the State. On the contrary, as observed hereinabove, the State is within its power and authority to provide such a preferential treatment to provide a better public health in the rural, tribal and hilly

areas.

x                      x                      x

90. We are of the opinion that the admission

process stipulating a distinct source of entry for

in-service candidates by itself would not

constitute breach of the provisions of Regulation 9

of the 2000 Regulations, provided that the minimum standards mandated by the said Regulations for being eligible to pursue

postgraduate medical degree course are adhered to. A separate source of entry for in-service doctors through the State merit list in our view would come within the legislative power and

competence of the State. We also take note of the fact that reservation for in-service doctors has been a long standing practise and the rationale behind such reservation appears to be reasonable

to us. But we refrain from dilating on the

necessity of maintaining such practise as in this judgment, we are primarily concerned with the question of competence of State authorities in

making Rules providing for such reservation.”

11.2 Keeping the above in view, we hold that the State does have power to  provide for separate quota for in-service Doctors, as a separate source of entry in medical education, while filling up Post Graduate seats in medical education, from within the State Quota.

12. So far the second point for consideration i.e., having already provided for separate quota for in-service Doctors, further allowing them to compete in open category is concerned, in our view, not allowing them (in-service Doctors) to compete in open category

itself would lead to an illegality. True it is, that the posts reserved for in-service Doctors are reserved for them (in-service Doctors), but it would not be true to hold that, the posts which are unreserved are reserved for unreserved candidates.

13.1 So far the grievance with regard to providing additional weightage of marks by the State in the merit of in-service Doctors on the basis of their place of work in remote / difficult / hilly / rural areas is concerned, this Court finds that the State is well within its right to do so, in view regulation 9(4) of MCI Regulations, with specific reference to proviso thereto. The relevant part of the said

Regulation reads as under:-

“9. ………

(4) The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories.  An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cumEntrance Test and candidates shall be admitted to postgraduate courses from the said merit lists only.

Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the

Government/Competent Authority as an incentive up to 10% of the marks obtained for each year of service in remote and/or difficult areas or rural areas upto maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and/or difficult areas or rural areas shall be as notified by State

Government/Competent Authority from time to time.”

 

13.2 Providing additional marks as noted above, statutorily enhances the merit of the in-service Doctors. This is independent of the right of the State to have separate source of entry for admission in the Post Graduate Medical Courses. In other words, it can not be said  that, having already provided for separate source of entry for inservice Doctors,  it would not be open for the State to allow those inservice doctors to compete in open category, and that, if at all they are to be permitted, they (in-service Doctors) will not have additional weightage of marks in merit, on the basis of their place of work in remote / difficult / hilly / rural areas. If the say of the appellants is

accepted, it would lead to a situation where this Court would be required to provide for an arrangement of having two different merit lists for in-service Doctors, one with additional weightage of marks

and the second without such additional marks. This would be

inconsistent with proviso to Regulation 9(4) of MCI Regulations. The

challenge by the appellants in this regard is rejected.

14. Further, so far the additional weightage of marks to inservice Doctors is concerned, the appellants may have little less say so far inter se competition of in-service Doctors is concerned. However when it comes to their (in-service Doctors’) competing in open category is concerned, it can be examined, not from the view point of continuing the arrangement of additional marks while determining the merit of in-service Doctors (keeping in view the provision in Regulation 9(4) of MCI) but continuing the very composite arrangement contained in impugned stipulation 29(c), at an appropriate stage, if circumstances so require. In this regard, the grievance of the appellants about the impugned stipulation being arbitrary and unreasonable may become relevant. The same is

examined hereunder.

15. So far the grievance with regard to the extent of reservation

i.e. earmarking 50% of the seats available under the head of State Government quota for the in-service Doctors is concerned, though the competence of the State to do so can not be and is not questioned, we acknowledge the grievance of the appellants to the extent that, the cumulative effect of (i) providing separate quota for in-service Doctors in Post Graduate admissions and (ii) further allowing them to compete in open category may lead to a situation that few seats will be left, which in true sense can be said to have been filled in on merits. This grievance is further fortified with the additional factor that those in-service Doctors would compete in open category with additional weightage of marks in merit, on the basis of their place of work in remote / difficult / hilly / rural areas. This may lead to casualty of merit to substantial extent. The challenge to the impugned stipulation is principally on the ground that, no material is placed on record by the State to justify the necessity to do so, that too, to this extent.  Though we acknowledge the grievance of the appellants as noted above, it would not be proper for this Court to interfere in the impugned stipulation 29(c) on the ground that no material is placed on record by the State to justify the necessity to do so, that too, to this extent. It can also be said that there is no material on record to accept the say of the appellants either. The implementation of any policy starts some day. When the scales are poised this way, separation of powers between the executive and the judiciary

demands that the say of the State would not be interfered with, more particularly when it pertains to policy decision of the State. For this reason, while holding that the State does have power to do, what it has – vide impugned stipulation 29(c) quoted above, the consequence thereof is not immuned from judicial scrutiny on permissible parameters, at an appropriate stage. This being the first year of implementation of the impugned policy, and as noted above the implementation of such a policy has to start  some day, we deem it proper not to question the wisdom of the State as translated in its policy decision [impugned stipulation 29 (c) as quoted above] at this stage. This is with the clarification that, in the event the said policy ultimately turns out to be unsustainable on any of the permissible parameter of judicial scrutiny, including on the test of doctrine of proportionality and if any material is produced before the Court by the aggrieved party, this question will be examined by the Court and in that event it would not be open to the State and / or to in-service Doctors to contend that the said issue is concluded by this judgment.

16. On conjoint consideration of the above, we arrive at the conclusion that no interference is required in the impugned stipulation 29(c) and further that these appeals need to be dismissed, however

with further clarification as noted in para : 15 above.

17. For the reasons recorded above, these appeals are disposed of without any interference in the impugned judgment / order of learned Single Judge, however with the observations / clarification as noted in para : 15 above. No costs. C.M.Ps would not

survive.

(P.U., J.)        (S.S.K., J.)

27.01.2022 Index:Yes ssm

To:-

1.The Principal Secretary to Government,

State Of Tamilnadu

Health And Family (MCA-1) Department,    Fort St. George,Chennai-600009.

2.The Director Of Medical Education,    Directorate Of Medical Education,    Kilpauk, Chennai-600010.

3.The Secretary,

Selection Committee

Directorate Of Medical Education,    162,Periyar E.V.R. High Road,    Kilpauk, Chennai-600010.

4.The Secretary,

National Medical Commission    Pocket 14,Sector-8, Dwarka Phase I,    New Delhi-110077.

PARESH UPADHYAY, J. and

SATHI KUMAR SUKUMARA KURUP, J.

(ssm)

W.A.Nos. 93 & 94 of 2022

27.01.2022