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Judgment
All these appeals arise out of a common order, rendered by our learned Brother Justice B.Rajendran, declaring that the petitioner in",,,
W.P.No.25277 of 2016 - Dr.M.Rajiv - deserves to be declared as inservice candidate and, accordingly, allowing the Writ Petition and dismissing",,,
three other Writ Petitions, namely, W.P.Nos.25827,25828 and 25829 of 2016.",,,
The appellants, Post-graduate Doctors, possessing M.S. (General Surgery Degree), are competing for admission to one seat, out of four,",,,
available in the Superspeciality - M.Ch. (Surgical Oncology) Course. The Director of Medical Education has notified the prospectus for the,,,
academic session 2016- 2017 for admission to the three year Higher Speciality Course in Tamil Nadu. The notification was issued on 23.06.2016,,,
containing the information about the total number of seats available in each course and the medical college where it is available and also how many,,,
of them are meant for inservice doctors and the other being open category seats. The last date for online submission was set as 01.07.2016 at,,,
05.00 p.m. The entrance examination was slated to be conducted on 10.07.2016. The candidates, who have studied their undergraduate and",,,
postgraduate courses in Tamil Nadu, who have obtained postgraduate degree from medical colleges, recognised by Medical Council of India,",,,
alone are eligible. Two merit lists, one open merit list and the second service merit list, were prepared. While open merit list comprises both service",,,
and non-service candidates for each discipline of Higher Speciality Course, the service merit list will be confined only to such of those service",,,
candidates competing for admission to the Higher Speciality Cource concerned. Entrance examination marks to a maximum of 90% would be,,,
taken and, thereafter, experience marks to a maximum of 10% would be added thereto. Experience marks would be granted at the rate one mark",,,
for each year, after completion of postgraduate degree. 50% of seats in each speciality and in each college are reserved for service candidates.",,,
Candidates have to secure 50% of entrance examination marks, if they belong to ''Other Community'' (OC), and 40% if they belong to reserved",,,
communities, such as, BC, BCM, MBC, SC, SCA and ST. All the selected service candidates, at the time of joining, should execute a bond, as",,,
detailed in Annexure-IV, in a sum of Rs.40.00 lakhs, undertaking to serve the Government, till the date of superannuation, with three sureties. All",,,
the selected non- service candidates are also required to execute a similar bond in a sum of Rs.40.00 lakhs, undertaking that they shall serve the",,,
Government of Tamil Nadu for a period of not less than ten years, if their services are required by the Government of Tamil Nadu, and the",,,
Government will requisition their services, if required, within a period of two years from the date of completion of the Higher Speciality Course.",,,
For M.Ch. (Surgical Oncology) Course, the candidates, who have obtained MS (General Surgery) degree, MS (ENT), MS (Orthopaedic",,,
Surgery), MD (Obstetrics and Gynaecology) are rendered eligible. Four seats in M.Ch. (Surgical Oncology) are available at Kilpauk Government",,,
Medical College, Chennai. The provisional merit list for M.Ch. (Surgical Oncology) Superspeciality was published, in which, Dr. Arul Murugan, a",,,
non- service candidate, topped the list having secured 63.25 marks. The second rank was secured by Dr.G.M.Jagadeesan, who is a service",,,
candidate, by securing 62.25 marks. The third rank was secured by Dr.Jagadish Singh, another service candidate, who secured 61 marks. The",,,
petitioner in W.P.No.25277 of 2016 - Dr.M.Rajiv - who secured 60.50 marks was shown to have secured the fourth rank. Dr.Anbazhagan, S.,",,,
secured 58.50 marks and he was placed at Serial No.6 in the merit list. Dr.Arun Victor Jebasingh secured 56.75 marks and he was assigned 14th,,,
rank. Dr.Arun Victor Jebasingh claimed as a service candidate and, similarly, Dr.Rajkumar, who secured 58.25 marks also claimed as a service",,,
candidate. Dr.Rajkumar secured 9th rank, but, however, he opted for M.Ch. (Gastroenterology) Speciality Course. It is, therefore, the claim of",,,
Dr. Arun Victor Jebasingh that he should be granted admission against the fourth seat available, being the next meritorious service candidate,",,,
whereas, it is Dr.Rajiv, who is standing at Serial No.4 in the merit order, who staked a claim for admission, and, in the process, claimed the seat",,,
also as an inservice candidate. The sixth ranker Dr.Anbazhagan also claimed admission against the available seat, by claiming himself also as a",,,
service candidate, and, at the same time, disputing the claim of Dr.M.Rajiv as a service candidate.",,,
The above fact situation led to a piquant situation. Dr.Arun, the fourteenth ranker, can succeed, if he can demonstrate that he is a legitimate",,,
service candidate, while, at the same time, Dr.Rajiv and Dr.Anbazhagan are not service candidates. Dr.Anbazhagan can succeed only if he can",,,
demonstrate that he is a service candidate and by by virtue of his superior merit ranking to that of Dr.Arun. Dr.Rajiv, the fourth ranker, can",,,
succeed being more meritorious than the other two competing Doctors, and he alone is entitled to be granted admission, as the two inservice seats",,,
are already filled in.,,,
It is in the above context of a triangular fight, that the learned single Judge declared that Dr.Rajiv is entitled to be treated as a service candidate",,,
and, on that basis, admission was ordered to be granted to him by virtue of his superior merit ranking to the other two doctors. It is only",,,
appropriate, hence, for us, to resolve the controversy relating to whether or not these three Doctors can be treated as service candidates at all ?",,,
The recruitment process to the posts of Medical Officers, which have been organised into a civil service, have been appropriately brought under",,,
the purview of the Tamil Nadu Public Service Commission. But, however, the experience seems to have revealed that a separate recruitment",,,
board is required to be constituted for recruiting the Medical Officers to various services. Consequently, the State Government has announced a",,,
policy decision at the highest level - on the floor of the Legislative Assembly - for formation of Medical Services Recruitment Board, and,",,,
accordingly, issued orders through their G.O.Ms.No.1, Health and Family Welfare Department, dated 02.01.2012, for a large number of",,,
vacancies of Medical Officers to the tune of 2159 are required to be filled in at the earliest, apart from the need to fill up 333 consequential",,,
vacancies that might arise during the year 2012-2013, due to retirements and promotions, to ensure uninterrupted health care delivery to the",,,
public. Pending issue of amendment to the Tamil Nadu Public Service Commission Regulations,1954, the Government have also decided to make",,,
temporary appointments of 2159 Assistant Surgeons, by making recruitment through the Medical Services Recruitment Board. Accordingly,",,,
orders were passed through their G.O.Ms.No.23, Health and Family Welfare Department, dated 29.01.2013. The broad modalities as to how the",,,
selection and recruitment have to be carried out has been spelt out in the said G.O. Paragraph 6 thereof has certain significance for the issue,,,
required to be decided in this case and, hence, it is quoted hereinbelow :",,,
The issue of regularising the services of temporarily appointed Assistant Surgeons will be taken up after the issue of necessary amendment to",,,
the Tamil Nadu Public Service Commission Regulations,1954.""",,,
Pursuant to these orders of the State Government, dated 29.01.2013, the Medical Services Recruitment Board (MRB) invited applications on",,,
21.04.2013 for direct recruitment to the posts through their Notification No.1 of 2013, dated 31.03.2013. The notification invited applications for",,,
911 posts of Assistant Surgeons (General-MBBS), while 1163 Assistant Surgeons (Speciality) Posts are also notified. The successful candidates",,,
are required to join duty within thirty days from the date of receipt of orders and shall not claim extension of joining time on the ground that they,,,
are undergoing higher studies/PG Course or for any other reason. Selected candidate was also required to abide by the condidtion that his/her,,,
name will be removed from the approved list, without assigning any reasons therefor, if he/she fails to join duty within the stipulated time. On",,,
19.05.2013, the entrance examination was conducted and the provisional merit list of the selected candidates has been published on 12.06.2013.",,,
Dr.Rajiv as well as Dr.Anbazhagan are both found selected by MRB and, against their names (Registered Number), an asterisk mark has been",,,
put, indicating their selection as purely provisional, pending production, verification and acceptance of the mandated documents, called for, as per",,,
the notification. The fimal merit list has been notified by MRB on 21.08.2013. Insofar as Dr.Anbazhagan with Registration No.1017605-15287,",,,
once again, an asterisk mark was put, indicating the provisional nature of his selection, subject to production and verification of the mandated",,,
documents.,,,
The case of Dr.Anbazhagan is that after completing his MBBS Course, he secured admission in MS (General Surgery) Course for the academic",,,
session 2010- 2013. He was pursuing MS (General Surgery) Course when MRB issued the notification on 31.03.2013, inviting applications for",,,
recruitment. As on the last date of submission of the said recruitment notification, Dr.Anbazhagan was still pursuing MS (General Surgery) Course",,,
and, consequently, he did not secure MS (General Surgery) Degree, by 21.04.2013, the last date for submission of the applications. The",,,
Notification No.1 of 2013, dated 31.03.2013, required the Assistant Surgeon (Speciality) candidates to possess MS (General Surgery) Course.",,,
Para 5 of the said notification dealt with the qualifications required to be possessed by the candidates. Sub-paragraph (a) thereof dealt with the age,,,
requirement and it specifically said that the age requirement will be reckoned as on 01.07.2012, and, for the post of Assistant Surgeon, both",,,
General and Speciality, the upper age limit was 35 years as on 01.07.2012. Para 5 (b) dealt with educational qualifications. It required the",,,
candidates to possess the following or its equivalent qualifications awarded by Universities or Institution recognised by UGC. For Assistant,,,
Surgeon (General), the qualification required is, only MBBS Degree. For Assistant Surgeon (Speciality), PG Degree/Diploma in the Speciality",,,
concerned or Superspeciality is required.,,,
It is not in dispute that Dr.Anbazhagan was admitted to MS (General Surgery) Course during the academic year 2010-2011 and, consequently,",,,
he had completed his MS (General Surgery) Course only in May 2013. Thus, Dr.Anbazhagan is not possessing MS (General Surgery) Degree as",,,
on 21.04.2013, the last date on which the applications were to be received pursuant to the Notification No.1 of 2013, dated 31.03.2013, issued",,,
by MRB. His application in response to the said notification can only be considered for recruitment against Assistant Surgeon (General- MBBS),,,
Category, but not for the post of Assistant Surgeon (General Surgery - Speciality), as he did not possess the minimum necessary qualification of",,,
M.S. (General Surgery) as on the last date of receipt of applications. It would be wholly appropriate to recall the principle enunciated by the,,,
Supreme Court in Dolly Chhanda vs Chairman, Jee & Ors., 2005 (9) SCC 779, which is to the following effect :",,,
The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed",,,
for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary.",,,
There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established,,,
by producing the necessary certificates, degrees or marksheets....""",,,
However, Sri G.Sankaran, learned counsel appearing for Dr.Anbazhagan, the appellant in W.A.Nos.37 and 38 of 2017, has contended that he",,,
was, in fact, appointed by the Director of Public Health and Preventive Medicine, Chennai, through his proceedings, dated 22.04.2013, and,",,,
hence, he is an inservice doctor. Sri Sankaran has further contended that this order of appointment has emanated because of his selection by MRB",,,
pursuant to the notification No.1 of 2013, dated 31.03.2013.",,,
This contention of Sri G.Sankaran lacks factual accuracy. The Notification No.1 of 2013 has been issued by MRB, on 31.03.2013, no doubt,",,,
but, setting forth the last date for submission of applications by the candidates through online mode as 21.04.2013 and the last date for payment of",,,
examination fee and submission of the hard copy as 22.04.2013. The competitive examination was conducted by MRB on 19.05.2013 and the,,,
provisional results of the selected candidates was announced on 12.06.2013, followed by the final list of selected candidates, dated 21.08.2013.",,,
Therefore, on 22.04.2013, he could not have been appointed against one post or the other in the service of the State Government, as notified by",,,
MRB. His selection by MRB is clearly beyond 22.04.2013. Therefore, Dr.Anbazhagan cannot link, in any manner, his response to Notification",,,
No.1 of 2013 and his provisional selection, pursuant to the competitive examination that was conducted on 19.05.2013, to the order appointing",,,
him, issued through proceedings No.R.No.23328/E5/A4/2013/468, dated 22.04.2013, by the Director of Public Health and Preventive Medicine,",,,
Chennai.,,,
In this context, it will be appropriate to notice that the Health Care Delivery, functioning under the overall control and supervision of the Health",,,
and Family Welfare Department of the State Government, is under three Directorates. (1) The Director of Medical Education, who is in-charge of",,,
the Medical Education in the State and also with regard to administration of all attached teaching hospitals. The next is the Director of Medical and,,,
Rural Health, who is overall in-charge of the District Headquarters'' Hospitals, and the third Directorate is that of the Director of Public Health and",,,
Preventive Medicine, who is in-charge of the Primary Health Centres (PHCs) and other Territorial Hospitals, which are essentially non- teaching",,,
Hospitals.,,,
All Postgraduate Doctors, who were admitted to one Postgraduate Course or the other in Government Medical Colleges were required to",,,
execute a bond to serve for a minimum period in one Government Hospital or the other. If a candidate has pursued the three year postgraduate,,,
course, he or she is required to compulsorily serve the Stage Government for a minimum of two years duration. This service is recognised as",,,
Bond Service"". As and when the postgraduate education is drawing to a close, the Director of Medical Education is making available the list of",,,
such doctors, who have executed the bond, for rendering compulsory service, and the State Government, through their G.O.Ms.No.215, Health",,,
and Family Welfare Department, dated 12.06.2007, authorised the Director of Public Health and Preventive Medicine to issue posting orders to",,,
such Government Medical College trained postgraduate students. It is, therefore, appropriate to quote the following opening passage of the",,,
proceedings, dated 22.04.2013, on which, Sri Sankaran, learned counsel, has placed great reliance :",,,
PROCEEDINGS OF THE DIRECTOR OF PUBLIC",,,
HEALTH AND PREVENTIVE MEDICINE, CHENNAI-600 006.",,,
Name of the Candidate / Date of Birth and Address,"Tamil Nadu Medical
Council Registration No.
and Date of Registration",Qualification,"Name of the Directorate to which
released and institution to which
posted
Dr.Anbahagan S 06.06.1984 434 Kulakarai Street
Muthandi Kuppam Periyankuppam Post Panruti
TK, Cuddalore Dist.607 805",83924/2008,MS (GS),"Director of Medical & Rural
Health Services, Chennai-6 (GH,
VIRUDHACHALA M,
CUDDALORE)
(a) Medical Officers selected by the TNPSC/MRB (through competitive written examination and appointed in the Tamil Nadu",,,
Medical Service on regular basis, who have put in minimum of two years of continuous regular service as on 30.06.2016 are eligible.",,,
(b) Medical Officers serving continuously for two years in Local Bodies of Tamil Nadu as on 30.06.2016 are eligible.,,,
(c) Contract medical consultants and 10 (a) (i) candidates are eligible to apply as private candidates.""",,,
The requirement specified in this regard is three fold : (1) the Medical Officer must be selected by Tamil Nadu Public Service Commission or by,,,
MRB through competitive written examination ; (2) He should be appointed in one or the other of Tamil Nadu Medical Services on regular basis;,,,
(3) He should have put in minimum of two years of continuous regular service as on 30.06.2016. The contractual medical consultants and those,,,
candidates, who have been appointed on temporary basis under Rule 10 (a) (i) are eligible to apply as private candidates, meaning as non-service",,,
candidates. In this view of the matmter, Dr.Anbazhagan is clearly not entitled to claim as an inservice doctor. It will also be relevant to notice that",,,
Dr.Anbazhagan has not claimed in his application form, seking admission to the Superspciality course of M.Ch. (Surgical Oncology), as an",,,
inservice doctor. In his application form, Dr.Anbazhagan has clearly mentioned his date of joining MS (General Surgery) course in Government",,,
Kilpauk Medical College as 30.04.2010 and the date of completion of the said course as 27.04.2013. By this very candid disclosure, there",,,
remains hardly any doubt that Dr.Anbazhagan did not complete/possess MS (General Surgery) course as on 21.04.2013, the last date for",,,
submission of applications online, as per the Notification No.1 of 2013, dated 31.03.2013, issued by MRB. Further, Dr.Anbazhagan, against",,,
column 22, claimed to be serving the Tamil Nadu Government service, working under the control of Director of Medical Education under Rule 10",,,
(a) (i). This also leaves no doubt that Dr.Anbazhagan cannot be treated as an inservice doctor, as the prospectus has clearly mentioned that those,",,,
who have been appointed under Rule 10 (a) (i), can only appear as non-service doctors.",,,
This could be the reason why Dr.Anbazhagan, on 18.07.2016, submitted a representation to the State Government, requesting them to",,,
consider his pass in the examination held on 19.05.2013, conducted by MRB, as a regularisation examination, and allow him to attend for the",,,
ensuing counselling for admission to Higher Speciality Courses, as a service candidate. It is only appropriate to notice that the results of the",,,
entrance examination for admission to Superspeciality Courses have been published by then, and, in fact, the schedule of Admission Counselling",,,
for 26.07.2016 was also announced.,,,
In this context, we also need to advert to the contention, which Sri G.Sankaran developed, by setting forth that since he was pursuing MS",,,
(General Surgery) Course at the time when Notification No.1 of 2013, dated 31.03.2013, was published by MRB and his original certificates,",,,
such as, pass in MBBS Degree, successful completion of rotating housemanship and registration with the Medical Council were all retained by",,,
Government Kilpauk Medical College and, hence, the Dean, Kilpauk Medical College, has issued a certificate on 13.06.2013, certifying that",,,
Dr.Anbazhagan was a bona fide student of the college and completed the postgraduate course in MS (General Surgery) during the month of,,,
June,2013, and that his original certificates are retained by the Medical College. It will also be appropriate to notice, that at the end of the said",,,
certificate, the following caveat has been entered by the Dean:",,,
This certificate is issued for the purpose applying DM/M.Ch. Courses only.""",,,
The attempt of Sri G.Sankaran, learned counsel for Dr.Anbazhagan to link up this certificate for the purpose of satisfying this Court that the reason",,,
behind the asterisk mark against his registration number put in the list of provisional selection/ final selection announced by MRB on 12.06.2013,,,
and 21.08.2013 respectively is also not fitting in properly. If only the MRB verified Dr.Anbazhagan''s certificates, they would have realised that he",,,
is not eligible to apply for the post of Assistant Surgeon (Speciality-Surgery), for the reason that he did not possess MS (General Surgery) Degree",,,
as on the last date of submission of applications, 21.04.2013. In this context, if we peruse the contents of the counter affidavit, it becomes more",,,
than clear that Dr.Anbazhagan has not pressed for appointment as Assistant Surgeon (Speciality- General Surgery), pursuant to his selection by",,,
MRB. It will be relevant to notice that Dr.Anbazhagan has not claimed selection or appointment as Assistant Surgeon (General - MBBS),,,
Category, for which, he is eligible at that stage. But, however, he applied for Assistant Surgeon (Speciality-General Surgery) and got selected. It",,,
was only after verification of his M.S. (General Surgery) Study Certificate, his very eligibility to compete for such course would have cropped up.",,,
That was the reason, why Dr.Anbazhagan has not staked claim for appointment as Assistant Surgeon (Speciality- General Surgery) and, on the",,,
other hand, he preferred to complete the compulsory two year bond service and joined the service of the Government in May,2013, pursuant to",,,
the order issued on 22.04.2013, by the Director of Health and Preventive Medicine. Thus, looked at from all perspectives, Dr.Anbazhagan cannot",,,
make a claim for admission to M.Ch. (Surgical Oncology) Course as an inservice doctor and he could only compete as an open category,,,
candidate, non-service, and also his merit ranking No.6 could not have fetched him such an admission, overlooking rank No.4, secured by",,,
Dr.Rajiv.,,,
Right at this stage, it will also be convenient to deal with the claim of Dr.Rajiv as an inservice doctor, which was, in fact, upheld by the learned",,,
single Judge. Dr.Rajiv has claimed selection pursuant to MRB''s Notifiation No.1 of 2013, dated 31.03.2013; his registration No.1017950-13693",,,
was included in the provisional selection list published on 12.06.2013 for the posts of Assistant Surgeon (General), but, however, it will be",,,
appropriate to notice that after the provisional selection list notification, dated 12.06.2013, MRB has issued another notification, dated",,,
19.06.2013, setting forth the date, time and venue for production of the documents for verification as 27.06.2013 between 10.00 a.m. and 01.00",,,
p.m. Over the leaf, the list of documents required to be produced included (1) Date of Birth Certificate, (2) Superspeciality/PG Degree/PG",,,
Diploma Degree/HSC Degree etc. Thus, it is clear that the provisionally selected candidates, as notified on 12.06.2013, were required to produce",,,
the certificates on 27.06.2013, including the MBBS Degree, if they have staked claim for recruitment to the post of Assistant Surgeon (General-",,,
MBBS) Category and Postgraduate Degree, if one has made claim for appointment as Assistant Surgeon (Speciality) Course. As on 27.06.2013,",,,
Dr.Rajiv was pursuing his second year of the three year MS (General Surgery) Course and, hence, he has not opted to be recruited as Assistant",,,
Surgeon (General-MBBS) Category, pursuant to his provisional selection, notified by MRB on 12.06.2013, as that would imply his dropping out",,,
of M.S. (General Surgery) P.G.Course half-way through. He obviously chose the softer option of abandoning Government Service and preferred,,,
to complete the P.G.Course.,,,
In fact, the same logic will apply in case of Dr.Anbazhagan also, as he could not have produced his M.S.(General Surgery) Degree as on",,,
27.06.2013, as he merely completed M.S. (General Surgery) Course by the end of May,2013, but was yet to obtain such a degree certificate",,,
from Tamil Nadu Dr.MGR Medical University, Chennai.",,,
Dr.Rajiv also rested his case, to be treated as a Service Doctor, on proceedings bearing R.No.38410/E5/A4/2014-55, dated 10.06.2014,",,,
issued by the Director of Public Health and Preventive Medicine, Chennai. Contents of this proceeding tally verbatim to the one which",,,
Dr.Anbazhagan was issued on 22.04.2013, excepting that the year 2014 batch is mentioned in this proceeding.",,,
Since we have already elaborately discussed as to how such a proceeding cannot be construed as an appointment to one service or the other,,,
under Tamil Nadu Medical Services, we cannot, but, record a finding that Dr.Rajiv also cannot be treated as an inservice doctor. In fact, in his",,,
application, seeking admission also, Dr.Rajiv did not claim admission as an inservice doctor. We are, therefore, clearly of the view that Dr.Rajiv",,,
cannot be treated as an inservice doctor. To this extent, the finding and order of the learned single Judge is erroneous",,,
We now deal with the question as to how the seats at the superspeciality courses have to be filled in. As per the Rules, two seats have been set",,,
apart for the inservice doctors, while the remaining are thrown open. In this context, we need to properly understand as to whether setting apart",,,
two seats for the inservice doctors would amount to a reservation or it is merely an arrangement made for advancing the skills of inservice doctors,",,,
so that they, in turn, render superior quality services to the State Government.",,,
The question as to whether there can at all be any reservation at postgraduate medical education has fallen for consideration before the,,,
Supreme Court in Dr.Jagdish Saran v. Union of India, 1980 (2) SCC 768. Justice Krishna Iyer, speaking for the Court, has made the following",,,
observations in paragraphs 20,22 and 23.",,,
20.....But it must be remembered that exceptions cannot over-rule the rule itself by running riot or by making reservations as a matter",,,
of course, in every university and every course. For instance, you cannot wholly exclude meritorious candidates as that will promote",,,
sub- standard candidates and bring about a fall in medical competence, injurious, in the long run, to the very region.....Nor can the",,,
very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the,,,
nation. So, within these limitations, without going into excesses, there is room for play of the State''s policy choices.",,,
The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of,,,
reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale",,,
reservation. So, a certain percentage, which may be available, must be kept open for meritorious performance regardless of",,,
university, State and the like. Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of",,,
proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalisationwhen the Constitution",,,
mandates for every one equality before and equal protection of the law-may be fatal folly, self- defeating educational technology and",,,
antinational if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and",,,
real potential of the weak with the partial recognition of the presence of competitive merit-such as the dynamics of social justice which,,,
animates the three egalitarian articles of the Constitution.,,,
Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push,,,
justified for a handicapped group cannot prevail in the same measure at the highest scale of speciality where the best skill or talent,",,,
must be handpicked by selecting according to capability. At the level of Ph.D., M.D., or levels of higher proficiency, where",,,
international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the",,,
considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more",,,
meaning and cannot be diluted much without grave risk...""",,,
Again, a similar question was examined by the Supreme Court in Dr.Pradeep Jain''s case, cited supra, wherein, the following",,,
observations are made :,,,
If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks then",,,
another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance",,,
for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses.,,,
After all, top technological expertise in any vital field like medicine is a nation''s human asset without which its advance and",,,
development will be stunted. The role of high grade skill or special talent may be lessat the lesser levels of education, jobs no",,,
disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at",,,
the summit is to temporise with the country''s development in the vital areas of professional expertise. In science and technology and,,,
other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be",,,
running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material",,,
progress, the people of India should not be denied the best the nation''s talent lying latent can produce. If the best potential in these",,,
fields is cold- shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people",,,
themselves.""",,,
Then came the other case in Mohan Bir Singh Chawla v. Punjab University, 1997 (2) SCC 171, wherein, the following observation is",,,
made :,,,
The fair and proper rule is : the higher you go, in any discipline, lesser should be the reservations - of whatever kind.""",,,
Referring to the above judgments, a Constitution Bench of the Supreme Court, in Dr.Preethi Sreevastava and Another v. State of",,,
Madhya Pradesh and Others, 1997 (7) SCC 120, has laid down the following principle :",,,
This Court has repeatedly said that at the level of superspecialisation there cannot be any reservation because any dilution of",,,
merit at this 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 a super speciality, something more than a mere professional competence as a doctor is required.",,,
A super-specialist acquires expert knowledge in his speciality and is expected to possess exceptional competence and skill in his,,,
chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight",,,
diseases. It is in public interest that we promote these skills. Such high degrees of skill and expert knowledge in highly specialised,,,
areas, however, cannot be acquired by anyone or everyone. For example, specialised sophisticated knowledge and skill and ability to",,,
make right choices of treatment in critical medical conditions and even ability to innovate and device new lines of treatment in critical,,,
situations, requires high levels of intelligent understanding of medial knowledge or skill and a high ability to learn from technical",,,
literature and from experience. These high abilities are also required for absorbing highly specialised knowledge which is being,,,
imparted at this level. It is for this reason that it would be detrimental to the national interest to have reservations at this stage.,,,
Opportunities for such training are few and it is in the national interest that these are made available to those who can profit from them,,,
the most viz. the best brains in the country, irrespective of the class to which they belong.""",,,
Justice Sujata V. Manohar delivered the lead judgment in the above case. The Constitution Bench approved the reasoning and conclusion drawn,,,
earlier in Dr.Sadhna Devi''s case, cited supra, and overruled the reasoning and conclusions drawn in Ajay Kumar Singh v. State of Bihar, 1994 (4)",,,
SCC 401, and Post-Graduate Institute of Medical Education and Research v. K.L.Narasimhan, 1997 (6) SCC 283. The fourth conclusion drawn",,,
in paragraph 62 of the main judgment reads as under :,,,
At the level of admission to the super-speciality courses, no special provisions are permissible, they being contrary to the national interest. Merit",,,
alone can be the basis of selection.""",,,
Justice S.B.Majumdar, who delivered a separate opinion, partly dissenting with the majority opinion, however, agreed with the aforementioned",,,
conclusion number 4. We, therefore, take it that it is a settled principle of law that there can be no reservations at the super-speciality medical",,,
courses.,,,
The question then remains as to how to treat or consider the seats, which are set apart for inservice doctors. We have to construe them as a",,,
facility, which the State is making available for its inservice doctors, so as to improve upon the quality of health care delivery, that has to be",,,
undertaken by the State, as an obligation towards citizens. The seats at super-speciality courses are extremely limited. Unless the supporting",,,
infrastructural and instructional facilities are correspondingly avaialable, the seats at the super-speciality medical courses cannnot be sanctioned by",,,
MCI. The limited infrastructural facilities, otherwise available at Government Teaching Hospitals, may not be adequate to fetch more number of",,,
seats in super-speciality medical courses being sanctioned. The students, who pursue super-speciality courses, may not turn up later on to take up",,,
employment with the State Government, as the private sector holds out better professional prospects. Consequently, the State run hospitals may",,,
not find availability of adequate hands for effectively manning the posts in super-speciality hospitals, which, in turn, will have a direct impact on the",,,
quality of services, to be rendered in such super-speciality hospitals. Hence, with a view to ensure that the pipeline which supplies good or",,,
adequate numbers of super-speciality doctors to hold posts in various Government super-speciality hosptials available with the State does not get,,,
dried up and thus help the State Government to secure continuously the delivery of health care in that segment to the general public, it becomes",,,
inevitable for the State to allow and provide adequate facilities for its inservice doctors to receive the necessary training in super-speciality courses.,,,
Therefore, setting apart certain seats in various post-graduate super-speciality medical courses in favour of inservice doctors has been devised as",,,
an effective tool to keep the supply chain of well trained superspecialists becoming available to be deployed in various Government Hospitals has,,,
come to stay. Hence, such an arrangement, which, in turn, advances the cause of larger public interest, does not amont to a reservation, but,",,,
merely amounts to providing a training facility for inservice doctors. Any construction to the contra, by treating the same as a ''Reservation'', will be",,,
in violation of the principle of ''No Reservation at Superspeciality Medical Courses'', evolved by the Supreme Court.",,,
The same principle has been upheld by the Supreme Court in State of Tamil Nadu v. Dhilip Kumar, 2001 (8) SCC 700; K.Duraiswamy v.",,,
State of Tamil Nadu, 2001 (2) SCC 538; and also in Pre-P.G.Medical Sangharsh Committee and Another v. Dr.Bhajrang Soni, 2001 (8) SCC",,,
It is, thus, crystal clear that making available certain number of seats at the super-spciality post-graduate medical courses in favour of",,,
inservice doctors is only a training facility, but not a ''Reservation''. In other words, when once the number of seats so set apart for inservice",,,
doctors is filled up with inservice doctors, the question of making available any further seats to the inservice doctors irrespective of their relative",,,
merit does not arise.,,,
Illustratively put, if there are four super-speciality post- graduate medical seats available in a particular medical college, such as, D.M.",,,
(Cardialogy), D.M.(Neurology), M.Ch.(Cardiothorasic Surgery), M.Ch.(Neuro Surgery), M.S.(Surgical Oncology), M.Ch.(Surgical",,,
Gastroenterology), and, if two seats in each course are set apart for inservice doctors, those two seats are liable to be filled in only with inservice",,,
doctors, irrespective of their relative merit ranking position, vis-a-vis the open category/non-service doctors. Whether an inservice doctor secures",,,
the first rank or the fourth rank or any other inferior rank, he is entitled to be granted admission. Similarly, even if inservice doctors secure ranks",,,
beyond number 4, let us say, for example, 5,6,7,10,12 or 14, the best two rankers amongst them are liable to be granted admission, whereas, the",,,
other two seats are liable to be filled in by the best of those who have secured ranks 1,2,3, or 4, depending upon their willingness and option for",,,
the course concerned. In other words, if first rank, second rank, third rank and fourth rank, at the common entrance examinatioin, are secured by",,,
candidates, who are not inservice doctors, only two of them, let us say, the first and the second rankers are entitled to be granted admission.",,,
Though the candidates, who secured ranks 3 and 4 are also interested in pursuing the super-speciality courses concerned, yet, they are not liable",,,
to be granted admission against the remaining two seats, inasmuch as the remaining two seats are meant for only inservice doctors. The inservice",,,
doctors, in the above illustration, may have secured rank No.5 or 6 or even 10 or 12, but, they have to be granted admission, ignoring the claims",,,
of those, who have secured ranks 3 and 4, inasmuch as those rankers 3 and 4 are not inservice doctors. Let us examine it from a different",,,
perspective. At the common entrance examination, ranks 1 and 2 and 5 and 6 are secured by inservice doctors, whereas ranks 3 and 4 are",,,
secured by those doctors, who are not inservice doctors. In such a case, rankers 1 and 2 are liable to be granted admission against the two seats",,,
meant for inservice doctors and the remaining two seats have to be filled up by those who have secured ranks 3 and 4. Those, who have secured",,,
ranks 3 and 4, cannot be denied admission, on the premise that they have not secured first and second rank or on the ground that those who have",,,
secured first and second ranks should be treated to have been granted admission against the open category, meant for those who are not in",,,
service.,,,
Where certain seats are left for reserved category candidates, such as, Scheduled Castes, Scheduled Tribes, Other Backward Classes, Most",,,
Backward Classes etc., the number of seats reserved for them only represents the minimum assured intake from the respective stream. In other",,,
words, if any candidate from such reserved segment is meritorious enough to secure admission against the open (unreserved) seats, such a",,,
meritorious reserved category candidate is liable to be granted admission against open (unreserved) vacancy in the normal course. He cannot be,,,
counted against the reserved slot/quota, by virtue of his superior merit, when he secures admission against an open category seat. But, at the",,,
super-speciality post-graduate medical courses, there is no reservation of seats in favour of any segment. There can never be any reservation of",,,
any kind/type, at that level. Therefore, the concept of sliding of ""meritorious reserved segment candidate"" to occupy the open (unreserved) seat is",,,
not available at the superspeciality medical courses. That is precisely the issue in the present case. The first respondent in W.A.Nos.20 of 2017,,,
and 38 of 2017, who is also the sixth respondent in W.A.No.21 of 2017, who has secured fourth rank is entitled to be granted admission and",,,
those two doctors, who have already been granted admission and who have secured better ranks than him, are liable to be treated as inservice",,,
doctors and, on that basis, they can be granted admission. The State has only kept apart exclusively two seats to be offered to inservice doctors.",,,
To that extent, the non-service doctors are shut out from competing. The competition for two out of four seats is confined only to the inservice",,,
doctors and the best two of such inservice doctors, irrespective of their ranking, will be offered those two seats. The remaining two seats can be",,,
competed by all and hence the merit ranking alone matters. That is the guarantee of equality, assured by Article 14 of our Constitution.",,,
We need to clarify, that in given situation, if all the four ranks, namely, rank 1,2,3 and 4 are secured by inservice doctors, then, it is for the",,,
State Government to consider treating the rankers 3 and 4 also for admission to the super- speciality course, at the same time. If the State",,,
Government is willing to spare the services of four doctors instead of two doctors for the entire duration of the course, it is for the State to take",,,
such a decision by way of grant of extraordinary leave on loss of pay basis, and, if such a decision is taken, it does not fall foul of Article 14. But,",,,
however, if the State comes to the conclusion that it cannot spare the service of all the four doctors at a time but can only spare the service of two",,,
doctors, it would be legitimate for the State Government to refuse to sponsor those who have secured ranks 3 and 4 from pursuing the",,,
superspeciality course. In such a case, it might be open for those who have secured ranks 3 and 4 to tender resignation to their employment if it is",,,
feasible and in accordance with the rules governing the same, and then pursue the post-graduate superspeciality course, like in the same manner as",,,
that of a student, and thereafter be entitled to stipend support only, but not to salary, which is paid to a student, who is not employed with the State",,,
Government. It is again open to the State Government to accept the resignation or, for valid reasons, deny such acceptance. That is altogether a",,,
different issue. Thus, the State is under an obligation to ensure that superspeciality medical courses are made available only to those who end up in",,,
the merit order.,,,
In short, if there are four seats available in a particular super- speciality course, what the State and the admission controlling authorities are",,,
required to do is, to draw a comprehensive/composite merit list of all competing doctors, and then find out within the best four rankers, whether",,,
there are two inservice doctors or not. When once they find that there are already two inservice doctors amongst the best four rankers, they may",,,
be granted admission to a particular superspeciality course and, then, no further inservice doctor can be granted admission, leaving aside the",,,
otherwise meritorius open category candidates. The remaining two seats will have to be offered strictly in the descending order of merit. If within,,,
the next merit ranking if an inservice doctor is found but not an open caterogy/non-service doctor, then, unless he relinquishes his employment or is",,,
spared by the Government, he cannot pursue the said course and he has to make way for the next ranking non-service doctor. The superspeciality",,,
course admission process should, therefore, be confined only to the meritorious candidates and, to the extent of making available this facility to the",,,
inservice doctors is fulfilled, the question of applying the principle of sliding thereafter would not arise, treating the ''set apart seats for inservice",,,
doctors'', as a kind of reservation. The superspeciality courses have to be offered only on merit basis and the exception being, the grant of",,,
admission to inservice doctors, irrespective of their low merit ranking. The inservice doctors securing admission on their own merit is only an",,,
incidental factor, but not necessarily the key element.",,,
In so far as the appellant in W.A.Nos.20 and 21 of 2017, Dr.Arun Victor Jebasingh, who is also the sixth respondent in W.A.No.37 of 2017",,,
and fourth respondent in W.A.No.38 of 2017, is concerned, he completed his Post- graduate course of M.S. (General Surgery) by 30.04.2011,",,,
having studied the said course from Kilpauk Government Medical College, Chennai. Hence, he was appointed as Assistant Surgeon (Speciality)",,,
on 06.06.2011 by the Director of Public Health and Preventive Medicine, in the same manner as Dr.S.Anbazhagan and Dr.M.Rajiv are appointed,",,,
to complete the two year ''Bond Service''. He was given necessary posting orders on 23.06.2011, posting him to Government Hospital, Sathur,",,,
Virudhunagar District. When Tamil Nadu Public Service Commission conducted ''Special Qualifying Examination'', he came out successfully and",,,
TNPSC notified his provisional selection for appointment by Direct Recruitment to the post of Assistant Surgeon (Speciality) on 28.02.2014. In,,,
his application for admission to the superspeciality courses, he has claimed the status as a service doctor. He has also indicated that he has been",,,
selected by Tamil Nadu Public Service Commission. The State Government has decided for creating Medical Services Recruitment Board, a",,,
specialist Board, for selection and recruitment of doctors, for various Government services, through their G.O.Ms.No.1, Health and Family",,,
Welfare (C2) Department, dated 02.01.2012. It was more than a year later, the State Government, through their G.O.Ms.No.23, Health and",,,
Family Welfare Department, dated 29.01.2013, directed MRB to temporarily appoint Assistant Surgeons/Assistant Surgeons (Dental) in Tamil",,,
Nadu Medical Services, pending amendment to Tamil Nadu Public Service Commission Regulations,1954. Upon Tamil Nadu Public Service",,,
Commission according its concurrence for excluding the post of Assistant Surgeon and Assistant Surgeon (Dental) in various Tamil Nadu Medical,,,
Services from the purview of recruitment of Tamil Nadu Public Service Commission, the State Government permitted MRB through their orders",,,
contained in G.O.Ms.No.214, Health and Family Welfare Department, dated 22.07.2014, to recruit Assistant Surgeons / Assistant Surgeons",,,
(Dental) for regular appointment in Tamil Nadu Medical Services. Once again, considering the paucity of eligible candidates to fill up various",,,
vacancies, particularly, specialist vacancies in Tamil Nadu Medical Services, orders were issued by the State Government through",,,
G.O.Ms.No.279, Health and Family Welfare Department, dated 15.09.2014, directing MRB to conduct ''walk-in'' selection process in every",,,
quarter of the year, after due notification in newspapers, and also after following communal rotation and rule of reservation. When a question arose",,,
as to how to regularise the services of the temporarily recruited doctors who are qualified later on in the special qualifying examination held by,,,
Tamil Nadu Public Service Commission for regularising the services of the Medical Officers, though they were initially appointed on temporary",,,
basis in relaxation of Rule 10 (a) (i) of the General Rules for Tamil Nadu State and Subordinate Services, the services of temporary inservice",,,
doctors, who are qualified in the special qualifying examination, have been ordered by the State Government to be regularised. That is how, the",,,
service of Dr.Arun Victor Jebasingh came to be regularised. Hence, he satisfies the norm prescribed in the prospectus, to be treated as an",,,
inservice doctor. Thus, of the three doctors, who are competing for the lone seat of M.Ch.(Surgical Oncology), Dr.Arun Victor Jebasingh is an",,,
inservice doctor, while Dr.S.Anbazhagan and Dr.M.Rajiv are not liable to be treated as inservice doctors.",,,
For the aforementioned reasons, all these Writ Appeals stand disposed of. The first respondent in W.A.Nos.20 of 2017 and 38 of 2017,",,,
namely, Dr.M.Rajiv, who is also the sixth respondent in W.A.No.21 of 2017, who has secured fourth rank and being the most meritorious",,,
amongst the three competing doctors, is entitled to be granted admission. He has to complete the whole duration of three year study and then alone",,,
he can be permitted to appear for the examinations. He cannot be allowed to take examinations along with other students, who have been granted",,,
admission during the academic session 2016-2017, without completing the whole duration of three year course study. The State Government will",,,
also evolve appropriately the guidelines in this regard, for regulating the admission of inservice doctors from now on. No costs. Consequently, the",,,
connected C.M.P.Nos.371,372,555,556 and 557 of 2017 are closed.",,,