WP/9148/2002 of DR.V.GEETHA Vs THE STATE OF TAMILNADU REP BY on 27 December 2002

:O R D E R

The writ petitioner has prayed for the issue of a writ of declarationto declare clause 17 of the Prospectus for admission to the P.G.Diploma/Degree Courses in Tamil Nadu Government Medical/Dental and SelfFinancing Dental Colleges for the academic year 2002-2003 as ultra vires andunconstitutional and consequently direct the respondents to consider theapplication submitted by the petitioner for selection to P.G.Diploma in Obstetrics and Gynecology without reference to Clause No.17 of the Prospectusfor the Academic Year 2002-2003 issued by the second respondent.

2. Heard Mr. G.Subramaniam, learned senior counsel appearing forM/s.M.Sathyanarananan and M.S.Sivakumar, for the petitioner andMr.V.R.Rajasekar, Special Government Pleader appearing for the respondents.

3. The petitioner who has secured the Bachelor of Medicine andSurgery during 1996 entered the Tamil Nadu Medical Services and is holding thepost of Civil Assistant Surgeon. During 1999, the petitioner joinedM.S.,(General Surgery) and acquired the qualification during September, 2001.As the petitioner desired to join P.G Degree/Diploma in DGO namely obstetricsand Gynecology, has come before this court challenging Clause 17 of theProspectus issued by the third respondent. It is not necessary to refer toany other factual matrix.

4. A counter has been filed and it is also not necessary to refer tothe details set out in the counter affidavit.

5. The points that arise for consideration are:

(A) Whether Clause 17 of the Prospectus is liable to be declared as ultravires and unconditional and illegal?

(B) Whether the petitioner is entitled to any consequential direction prayedfor?

6. The Prospectus issued by the Director of Medical Education,Chennai for admission to P.G Diploma/Degree/M.D.S Five Year M.Ch(NeuroSurgery)Courses in Tamil Nadu Government Medical/Dental and SelfFinancing Dental Colleges for the year 2002-2003 consist of GeneralInstructions and Annexures I to V. Clause 17 of the General Instructions isbeing challenged as unconstitutional. It is essential to set out the veryclause itself, which reads thus:- "17. Candidates who have already acquired a Postgraduate Degree in any onediscipline are not eligible to apply for any Postgraduate Diploma/Degree/FiveYear M.Ch.(Neuro-Surgery) courses."

7. Mr.G.Subramaniam, learned senior counsel contended that there isno justification at all to deny admission to the petitioner merely because shehas already acquired M.S.(General Surgery), a Post Graduate qualification, assuch restriction is arbitrary, discriminatory and ultra vires andunconstitutional.

8. Per contra, Mr.M.S.Rajasekar, learned Special Government Pleadercontended that the point raised in this writ petition has already been decidedby the Division Bench of this Court in Director of Medical Education Chennai-5Vs. Dr.V.Ramalakshmi, reported in 1999 Writ L.R. 481. So also the decisionof K.Govindarajan,J., in Dr.M.R.Sivakumar Vs. State of Tamil Nadu and others,reported in 1999 Writ L.R. 488. The contentions advanced by Mr.G.Subramaniam, learned senior counsel though argumentative, persuasive,requires elaborate consideration, however, this court will not be justified inexamining the matter any further in the light of the above pronouncementsheavily relied.

9. In Dr.M.R.Sivakumar Vs. State of Tamil Nadu and others, reportedin 1999 Writ L.R. 488, K.GOVINDARAJAN,J., has decided the challenge inrespect of a clause in the Prospectus, which reads thus:- "A candidate who has already acquired a higher speciality degree course in anyone discipline is ineligible to apply for any course during 1998-99 session"

10. The above clause as well as the clause impugned in this writ petition are of the same effect. While following the decision to the DivisionBench in Director of Medical Education Vs. Dr.V.Ramalakshmi, reported in 1999Writ L.R. 481 (W.A.No.955/1997), the learned Judge repelled the challenge tothe said clause by holding that the clause in the prospectus is not violativeof Articles, 21, 41, 45 and 46 and held that the said clause is notdiscriminatory, nor it offends Article 21.

11. The Division Bench in Director of Medical Education and Dr.V.Ramalakshmi, reported in 1999 Writ L.R.481, considered the challenge to para 4of the Prospectus issued for the year 1997-1998 and held that it is notunconstitutional nor ultra vires nor arbitrary. The Division Bench heldthus:- "12. Further, we are also unable to accept the general assertion of thelearned senior counsel for the respondent of the alleged violation of Articles14,19 and 21 of the Constitution of India. As noticed earlier, such right hasbeen construed to flow out of Article 21 of the Constitution of India and thattoo not in absolute terms or extent but confined up to the age of 14 years.The alleged violation of Articles 19 and 21 of the Constitution of India hasno meaning or merit of acceptance in our hands. The respondent's counsel wasunable to substantiate any lea of discrimination and except asserting that itis arbitrary and has no nexus or relevant to the object of selection ofcandidates for admission to undergo the studies in question, nothing illegalhas been pointed out and no violation of any other law has been pleaded orproved. The right of the Government to impose restrictions or regulate theconduct while continuing in service, and as part of such rights to denypermission for persons like the respondent, to pursue further studies while inservice, has been considered by us supra and upheld and cannot be said to beviolative of any of the statutorily protected rights of the respondent.Having regard to the limited number of seats available and the financialcommitments involved for the State, it is open to the Government to regulateadmission of candidates who are already in service, to such courses in higherstudies, of only those who have no cloud around them and who have no mixed oradverse record of service. While so, there is no rhyme or reason in the merecry of arbitrariness, pleading some hardship only, since such claims ofarbitrariness could be countenanced and rights of the Government asserteddenied only if some pr ovision of law or of Constitution is found to have beenviolated. In this case, no such violation having been substantiated, thealleged violation of Article 14 of the Constitution of India has no merit

12. The above reasoning of the Division Bench squarely answer thecontentions advanced herein as well.

13. In State of Andhra Pradesh and another Vs. Lauv Narendranath andothers etc., reported in 1971 (1) SCC 607, what was challenged being thatentrance test prescribed by the State for selection of the candidate inMedical College as not justified in law, discriminatory, invalid for want ofpublication and amounted to undue interference with the personal liberty ofthe candidates. In the said case, while examining the refusal to admit tomedical College, it was held that such refusal is not violative of Article 21.In the said pronouncement it has been further held that everybody subject tothe eligibility prescribed by the University is at liberty to get admission tothe Medical Course. Number of seats being limited when compared to the totalnumber of candidates and due to high competition, every candidate could notexpect to be admitted and such denial would not affect personal liberty underArt.21 of The Constitution.

14. The learned senior counsel appearing for the petitioner reliedupon Deepak Vs. Punjab University , reported in AIR 1989 SC 903 and contendedthat the impugned clause in the Prospectus is unconstitutional and violativeof Art.14 of The Constitution and as such invalid.

15. This court has to point out that having already acquired a PostGraduate Degree in a particular speciality, the petitioner cannot once againseek for admission to another speciality in P.G.Course, which would mean thatthe petitioner tries to secure successive Post Graduate qualifications, thoughin different specialiaties. The petitioner cannot claim that she is to betreated on par with others who possess MBBS degree while factually she hasalready acquired a Post Graduate qualification, namely M.S (General Surgery).The petitioner cannot put forward the plea of discrimination as well, as thepetitioner is not identically placed or on par with any other candidate with aqualification of Bachelor of Medicine and Surgery.

16. Having acquired a P.G. Qualification namely, M.S.(GeneralSurgery), the petitioner seeks to acquire another P.G. Degree in anotherspeciality which in effect would result in undue advantage being conferred onthe petitioner, while deprivation of a valuable opportunity to other graduatesin Medicine. The petitioner cannot put forward the plea of discriminationafter having acquired one P.G., degree, nor she could be treated equally or onpar with other graduates in Medicine and Surgery. The plea of discriminationcannot be sustained.

17. In Suganthi Vs. State of Tamil Nadu and another reported in 1984Writ L.R. Page 249 (D.B.) one of the clause in the prospective, which deniedadmission to those students who have already got admission in otherprofessional courses, such as Engineering, was challenged.

18. Clause 7(1) of the Prospectus which was the subject matter ofchallenge before the Division Bench runs thus:- "Candidate who have already undergone professional courses for the firstsemester (six months) in agriculture, veterinary BDS, Engineering, B.Pharmetc., and those who have failed three times in the first year MBBS Course arenot eligible to apply for admission to MBBS course"

19. As per clause 7(1) of the Prospectus a candidate who has alreadyundergone for the first semester in agriculture, agriculture, veterinary BDS,Engineering, B.Pharm etc., and those who have failed three times in the firstyear MBBS Course are not eligible to apply for admission to MBBS course.While examining the validity of the said clause in the Prospectus, the saidDivision Bench, while following the decision in Chitralekha Vs. State ofMysore reported in AIR 1964 SC 1823 repelled the contentions and held thus:-

"5. Selection of best candidates for admission to available seats indifferent category in professional colleges with an eye to restrict the numberon some reasonable basis since the colleges cannot hold beyond a particularnumber of students, is a power given to the authorities after evolving certainpolicies for the selection. One such policy in present case is to denyadmission to those students who have already got into the processionalcolleges mentioned in clause 7(1) of the prospectus and had undergone sixmonths course (first semester). Such a policy, in our opinion, is reasonableand has a nexus to the object sought to be achieved Viz., manning all thecolleges run by the Government efficiently and in distributing the seatsavailable equitably. If a candidate studying in an engineering college, whichcourse also got only a limited number of seats and for which also there iscompetition, and after writing the first semester, is allowed to compete for aseat in the medical college, it will definitely deprive the candidates whohave come in for the first time for selection to the medical course. Acandidate who has already secured a seat in the professional college stands ona different category and that candidate's chances of becoming a graduate inthat professional college is a fait accompli. Considering the limited numberof seats in various professional colleges, the Government thought it fit tolay down a policy as mentioned in Clause 7(1) of the prospectus. Further, ifa candidate who has got a seat in the engineering college deserts it, for theadmission which he gets in another professional college such as medicalcollege, the seat in that particular engineering college will go as a waste.The wisdom of the government thought it necessary to bring in such a policy,which has a nexus in our opinion for the bject to be achieved. By this policythere will be equitable distribution of limited seats available in all theprofessional colleges manned by the State after determining the merit of thecandidates eligible to appear for such a selection."

20. In the present case also it is to be pointed out that the StateGovernment runs the professional colleges and it cannot be said that theGovernment has no power to scheme the applicants on some reasonable terms, andrestrict the admission and distribute the seats equitably to those who arelonging for admission.

21. In Abhishekumar Vs. LLRM Medical College, Meerut, reported in 1

986 Supple. SCC 543, the Supreme Court upheld the Government's power underArticle 162 and held that where the number of seats for admission to variousP.G both degree and diploma are limited and large number of candidatesundoubtedly apply for those courses of study an order laying downqualification for candidates to be eligible for being considered for admissionto the said courses on the basis of merit specified by regulation cannot besaid to be in conflict with regulations of All India Medical Council Act.

22. In the same pronouncement the Supreme Court laid down as ameasure of social justice, equal opportunity or admission has to be accordedin admission to P.G. Courses

23. In D.N.Chanchala Vs. State of Mysore and others reported in 1971(2) SCC 293, the Apex Court held that the State which bears the financialburden of running the Government colleges is entitled to lay down criteria foradmission in its own colleges and to decide the source from which admissionwould be made, provided of course such classification is not arbitrary and hasa rational basis and a reasonable connection with the object of the Rules.

24. Following the above pronouncement the Apex Court, the TwoDivision benches as well as while agreeing with the pronouncement of K.GOVINDARAJAN,J., in Dr.M.R.Sivakumar Vs. State of Tamil Nadu and others,reported in 1999 Writ L.R. 488, the contention advanced by the learned seniorcounsel Mr.G.Subramaniam, this court holds cannot be countenanced.22. Writ Petition is dismissed. Consequently, connected WMP is alsodismissed. No costs.

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To

1. The State of Tamil Nadurep. by Secretary to GovernmentHealth and Family Welfare DepartmentSecretariat, Chennai-9

2. The Director of Medical EducationKilpauk, Chennai-10

3. The Secretary/AdditionalDirector of Medical Education172, Periyar EVR High Road,Kilpauk, Chennai-10