Dr. V. Ramalakshmi and Others vs The Director of Medical Education and Others

Govindarajan, J.—In all the above writ petitions, the petitioners who are working in the Government Hospitals applied for Post Graduate

Degree/Diploma Courses for 1997-1998. Their applications were not considered on the basis that some disciplinary proceedings against them

either contemplated or pending on the date of making their application. On the basis of para 4 in Clause VI of the prospectus for the year 1997-

1998 regarding admission to Post-graduate Diploma/Degree/MDS Courses in Tamil Nadu Government Medical/ Dental Colleges. The said clause

reads as follows:-

""Service candidates should send their applications through proper channel with forwarding authority''s remarks, if any disciplinary proceedings

are pending against them, service candidates should not send the application. This is applicable to Tamil Nadu services, local body/public Sector of

Tamil Nadu or Central Government, Defence Services candidates etc., forwarding officers need not forward the applications.

The candidates who are in service and facing any disciplinary proceedings are prohibited from sending applications under the above said clause.

The petitioners have challenged the said condition as it is not a reasonable classification and is arbitrary and there is no nexus to be achieved.

The learned Senior Counsel Mr. N.R. Chandran, appearing for the petitioner in W.P.No. 3065 of 1997 has submitted that in the matter of

education such a condition cannot be insisted. In the event of dropping disciplinary proceedings in favour of the petitioners, the petitioners cannot

get back the benefits of studies that they have sought for. Merely on the disciplinary proceedings initiated against the petitioners, they have to lose

the opportunity once for all. According to the learned Senior Counsel, even the service candidates can be considered in the available open

competition seats for selection among both the service and non-service candidates on merit basis. If the petitioners are considered equally with

non-service candidates in the open competition for selection, the condition imposed in para 4 in Clause VI as stated above is nothing but

discriminatory. It is his further submission that the said condition has no nexus to the object to be achieved. After making application if any

disciplinary proceedings are taken even before admission, such a person will not be disqualified for considering the application. That being so,

merely on the ground that some disciplinary proceedings are pending, the petitioners'' applications cannot be ignored.

Mr. Paul Vasanthakumar, the learned counsel appearing for the petition in W.P.No. 3037 of 1997 has submitted that the petitioner applied on

the basis of service certificate issued by the Deputy Director of Health Services and Preventive Medicine, Nagercoil, and according to the same no

disciplinary proceedings were pending on the date of the application. But the Director of Public Health and Preventive Medicine, Chennai, on

20.2.1997 informed the petitioner that the application was returned as the disciplinary proceedings under Rule 17(b) are contemplated against the

petitioner.

In the counter filed by the respondents it is stated that disciplinary action was first taken against the petitioner for his unauthorised absence from

duty on 18.8.1994 at 11.30 a.m. during surprise inspection and when the proceeding was sent to the Government, the Government instructed to

take disciplinary action under Rule 17(b) of the Tamil Nadu Civil Services (D and A) Rules for his unauthorised absence from duty. Even

according to the counter, no steps were taken against the petitioner pursuant to the instructions of the Government.

The learned Special Government Pleader appearing for the respondents has submitted, per contra, that it is a matter relating to service and so

this Court has no jurisdiction. Only the service tribunal has to decide the matter. According to him, the matter relates to condition of service and so

it has to come under Clause V of Section 3(q) of the Administrative Tribunals Act 1985. In support of his submission, the learned Special

Government Pleader relied on the decision reported in Railway Recruitment Board v. Ruban Peter, 1990 1 M.LJ. 373 . He further submitted that

the petitioners having applied in terms of the prospectus, they cannot challenge the said Clause later, on the basis that it affects their opportunity of

getting a seat. In support of the abovesaid contention, he relied on the decisions reported in Muthumanickam, S. v. S. of T. rep. by Com., and

Secty. to Govt. Agrl Dept; 1985 W.L.R. 357, Aditi Majumdar, Miss v. The Director, Jawaharlal Nehru Institute, 1987 W.L.R. 438 and Lizzie

Grade Rani (Minor) A. v. Director of Medical Education, 1990 W.L.R. 404 : 1990 W.L.R. 106, Suryanarayana Raju, Dr. G. v. The Government

of Tamil Nadu, . His further submission is that such a classification is a reasonable one and so it cannot be ocntended that it is an arbitrary

classification.

The petitioners have approached this Court by filing the above writ petitions on the ground that they have to be allowed to study further and so

they have challenged the conditions in para 4 in Clause VI in the prospectus. Such a prayer cannot be construed as it relates to service itself.

Merely because as a service candidates, the petitioners have applied for admission for higher studies, it cannot be said that the matters relate to

service, so as to approach the Administrative Tribunal. The learned Special Government Pleader relied on he decision reported in Railway

Recruitment Board v. Ruban Peter, 1990 1 M.L.J. 373, referred to above, in which the Division Bench of this Court has held as follows:-

In order to determine whether the High Court has jurisdiction to entertain a petition under Article 226/227 of the Constitution of India after

1.11.1985, what is to be examined is, firstly whether the dispute is the one raised by any in service candidate and is covered by the provisions of

the Act; Secondly, whether the application is made by an ''aggrieved person'' in respect of an order covered by Section 19, and thirdly whether the

grievance relates to a service matter as contemplated by Section 3(q). In case the answer to all the three questions is in the affirmative, then, and

then alone, the High Court''s jurisdiction is excluded and the tribunal shall have the jurisdiction to deal with such matters. The Tribunal, then, would

be vested with the jurisdiction to deal with matters and give complete and effective relief including the relief of declaring any particular Act, Rule or

action as invalid or ultra vires the Constitution or the law"".

The learned Judges have mentioned about the categories of the cases which come within the jurisdiction of the Tribunal. The grievance should

be in relation to service matter as contemplated u/s 3(q) of the Act. Only if all the three questions mentioned above are covered, then the High

Court''s jurisdiction is excluded. In this case, admittedly, the grievance is not related to the service matter but related to education. So, I reject the

argument of the learned Special Government Pleader regarding jurisdiction point.

The learned Special Government Pleader objected the writ petitions on yet another ground saying that the petitioners having applied for

admission to the Post Graduate Courses in terms of the prospectus, they cannot be allowed to challenge the same. In support of he above

submission, he relied on the decision reported in Muthumanickam, S. v. State of Tamil rep. by Com., and Secty. to Govt Agrl Dept 1985 W.L.R.

357; Aditi Majumdar, Miss v. The Director, Jawaharlal Nehru Institute, 1987 W.L.R. 438; Lizzie Grade Rani (Minor) A. v. Director of Medical

Education, 1990 W.L.R. 404 and Suryanarayana Raju, Dr. G. v. The Government of Tamil Nadu, 1990 W.L.R. 106. In all the above decisions it

is held that the petitioners having applied in terms of the prospectus they cannot challenge the same subsequently. The petitioner in W.P.No. 3037

of 1997 has applied on the basis that there is no disciplinary proceedings pending against him. But his application were rejected as disciplinary

proceedings are contemplated under Rule 17(b), as directed by the Government. So, this argument will not apply to the petitioner in W.P.No.

3037 of 1997.

I do not think that the petitioners can waive their fundamental rights. The Supreme Court in Miss Mohini Jain v. State of Karnataka, AIR 1992

S.C. 858 has held that "" ''right to education'' is concomitant to the fundamental rights enshrined under Part III of the Constitution and that the State

is under . constitutional mandate to provide educational institutions at all levels for the benefits of the citizens"". In view of the above, the objections

raised by the learned Special Government Pleader cannot be upheld. Considering the decision of the Apex Court, the Division Bench of this Court

has held in W.P. No. 10756, 10755 etc., of 1992, dated 16.12.1992 held that the theory that once the petitioners having accepted the conditions

in the prospectus cannot challenge the prospectus, is no longer good law, in view of the later decision of the apex court of the land reported in

Miss. Mohini Jain Vs. State of Karnataka and others, .

Even in the decision reported in Union of India v. Dr. P. Rajaram and Ors., 1993 2 S.C.C. 326 in the case of it is held as follows:-

Lastly, we may refer to one important fact. The first respondent (Dr. Rjaram) was served with a copy of letter dated November 3, 1988. That

clearly states that the 20 posts of Director Professor of super-time grade are to be filled up by selection method, merit with regard to seniority.

Therefore, the decision of the Government of India had been conveyed to the first respondent. The first respondent when he was put on notice

should have immediately voiced his protest. Of course, the failure to protest would not deprive him of a legitimate right if he is entitled to in law.

However, it is one of the points to be borne in mind.

In view of the above, the argument of the Special Government Pleader regarding estoppel cannot be accepted.

The only question remains is whether the condition mentioned in the prospectus disqualifying the candidates who are facing disciplinary

proceedings is reasonable one. As held by the Apex Court, the ''right to Education'' is a fundamental right enshrined under Part-Ill of the

Constitution. The petitioners are entitled to apply for admission to the courses for which they are entitled. Otherwise, merely because some

disciplinary proceedings are pending against them, they should not be prohibited from making applications. Such a condition amounts to depriving

the fundamental rights, and is nothing but arbitrary. In the event of dropping the charges in favour of the petitioners, they cannot get the benefits

revived just like reimbursing the monetary benefits. If the chances are denied now, it amounts to denying the same once for all. Moreover, the

persons who applied for such courses, and before admission if some disciplinary proceedings are initiated, they are not prohibited from joining

such courses. Likewise, if a person who is suffering punishment also is not prohibited from making application for admission. The candidates like

petitioners who are simply facing some disciplinary proceedings should not be deprived from getting admission on that ground alone. There is no

nexus to be achieved by putting that condition. If the intention is to avoid the persons facing disciplinary proceedings, even the persons who get

punishment and has been undergoing the said punishment also should be prohibited from getting admission. Any rule or condition would be made

only for the purpose of bringing effective result. In my opinion the condition that the person who is facing disciplinary proceedings cannot apply for

higher studies has no relevancy with the objective of the rules and admissions are concerned. No material is produced before this court as to why

such condition is being insisted. Such condition is noting but arbitrary, violative of Article 14 of the Constitution of India.

In view of the above, para 4 in Clause VI of the prospectus for the year 1997-98 has to be declared as unconstitutional, void and offending

the principles of Article 14 of the Constitution of India. The selection has therefore to be made without taking into account of the said condition.

The respondents are directed to consider the petitioners'' applications without taking into consideration of the said para 4 in Clause-VI, which

is held void by this Court and proceed with the selection of the petitioners for the course applied for by them.

In the result, W.P. Nos. 2317 and 3037 of 1997 are ordered as prayed for. In W.P. No. 3231 of 1997, though the petitioner has asked for

limited prayer, this writ petition is allowed, and, in the interest of justice, I direct the respondents to consider the application of this petitioner also

and proceed with the selection, in the light of the above said observation as service candidates. No cost. Consequently, no further orders are

necessary in W.M.P. Nos. 3866, 5084 and 5394 of 1997 and 8245 and 8798 of 1997 and they are closed.