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Judgment
Petitioners have filed this writ petition calling in question SRO 430 notified on December 27, 2007 in terms whereof only such inservice Assistants
Surgeons, who had actually served in a rural area for not less than two years, would be eligible to undergo Post Graduate Courses/ Super
Specialty Courses, on the ground that restriction placed by the Government on inservice Assistant Surgeonsrequiring them to serve for at least two
years in rural area before seeking participation in Entrance Examination for selection to the Post Graduate Courses,/ Super Specialty Courses in
the Medical Colleges of the State, was arbitrary, unjust and unwarranted, being in violation of Article 14 of the Constitution of India.
Defending the amendment introduced vide SRO 430 of 2007 to the Jammu and Kashmir Government Medical Colleges (Selection of Candidates
for Post Graduate Degree and Diploma Courses) Procedure Order, 1995, the State respondents say that there was shortage of doctors in rural
areas of the State and to meet the requirement of improving public health, particularly in remote and backward regions of the State, the State
Government, pursuant to the directions issued by this Court in a Public Interest Litigation in G. M. Khan v. State and others to the State
functionaries to devise ways and means to ensure presence of doctors in rural areas to take care of the health of those who reside in these areas,
had undertaken a drive to post doctors ill these .areas. These doctors, when appointed to the government service, would, however, in one or the
other way, manage their posting in urban areas thereby affecting State's resolve to cater to the need of public health in rural areas. It was because
of this reason that a condition was contemplated for its introduction in existing SRO 158 of 1995 thereby restricting admission of those inservice
candidates to Post Graduate Courses/Super Specialty Courses in the Medical Colleges of the State who had not completed two years actual rural
service, so that requisite health facilities were provided to those residing in rural areas of the State.
Learned counsel for the petitioners, Mr. V. R. Wazir, relying upon Dr. Atin Kundu and ors v. State of Chattisgarh and ors, reported as AIR 2003
Chhatlisgarh, 1 and Raj Kumar Pandit a v. Slate of Jammu and Kashmir, reported as AIR 19S9 J&K 37, urged that restriction placed on inservice
candidates to seek participation in Entrance Test for admission to Post Graduate Courses/ Super Specialty Courses in the Medical Colleges of the
State was violative of Article 14 of the Constitution of India. He asserted that right of education being a fundamental right flowing from Article 21,
no restriction could be placed on inservice candidates for their participation in the Entrance Test to seek admission to the Post Graduate Course/
Super Specialty Courses in the Medical Colleges of the State.
Mr. D. C. Raina, learned Senior Advocate, appearing for Board of Professional Entrance Examination, Mrs. Shaista Hakim, learned Deputy
Advocate General for State respondents and Mr. D. 3. Chauhan learned Advocate for the interveners, submitted that amendment introduced by
SRO 430 of 2007 to the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Post Graduate Degree and Diploma
Courses) Procedure Order, 1995, restricting those inservice candidates who had not completed two years of actual rural service, to participate in
the Entrance Test for undergoing Post Graduate courses/ Super Specialty Courses, would not offend Article 14 of the Constitution in any manner
whatsoever because the restriction placed by SRO 4340 of 2007 was founded on an intelligible differentia which had a rational relation with the
object sought to be achieved. Mrs. Hakim additionally urged that while issuing guidelines/criteria for sponsorship of doctors for higher studies i.e.
(PG/DM/MCH), the Government had issued its Order No. 83HME of 2007 dated 23rd February, 2007, providing that only such inservice
doctors would be eligible to undergo Post Graduate Courses/ Super Specialty .Courses who had put in minimum of two years service in rural
areas and that Board of Professional Entrance Examination shall not entertain the application forms of such inservice doctors for their participation
in the Entrance Test for the Post Graduate Courses/Super Specialty Courses unless they had produced No Objection Certificate and a certificate
of having two years runil service from Director Health Services of the concerned Division.
I have considered the submissions of learned counsel for the parties, gone through the judgments cited at the Bar and perused the material which
the parties have placed on records.
Right to seek higher education in professional courses is not ;.i fundamental right, is a position well settled in law, in view of the judgment delivered
by Hon'ble Supreme Court of India in Uniri Krishnan, J.P. and ors vs. State of Andhra Pradesh & Ors, reported as 1993 (1) SCC 645.
'Reasonable restriction can thus be placed on. one's right to seek admission to Professional Colleges imparting instructions in higher education.
Such being the case, I do not accept Mr. Wazir's submission as correct that right to seek higher education is a fundamental right.
With this the only question 'which remains to be answered for deciding this writ petition is as to whether or not SRO 430 of 2007 offends Article
14 of the Constitution of India.
The concept of equality before law contemplated by Article 14 of the Constitution of India means that, amongst equals the law should be equal and
should be equally administered, and that, the likes should be treated alike. In other words, all that Article 14 guarantees is similarity of treatment
and not identical treatment. The guarantee of equal protection. of law and equality before law would not thus prohibit a reasonable classification.
So viewed, equality before law would not thus mean that things which are different shall be treated as though they were the same.
To withstand the test of reasonable classification within the meaning of Article 14 of the Constitution, it is well settled that the classification must
satisfy the twin tests, viz. (i) it must be founded on an intelligible differentia which distinguishes persons or things placed in a group from those left
out or placed not in the group, and (ii) the differentia must have a rational relation with the object sought to be achieved. It is equally settled that
use of territories or the nature of the objects or occupations or the like may be permissible for purpose of classification. So long as there is a nexus
between the basis of a classification and the object sought to be achieved, the classification is valid.
Part IV of the Constitution of Jammu and Kashmir contains the directive principles of the State Policy. Its Section 24 reiterates State's duty to
make every effort to safeguard and promote the health of lite people by ensuring wide spread, efficient and free medical services throughout the
State particularly in remote and backward region'?. This Section for facility of reference, reads thus:
Duly of the State to improve public health: The State shall make every effort to safeguard and promote the health of the people by advancing,
public hygiene and by prevention of disease through sanitation, pest and vermin control, propaganda and other measures, and by ensuring
widespread, efficient and free medical services throughout the State and, with particular emphasis, in its remote and backward regions.
The object which the State Government has projected to achieve by introduction of amendment to the Jammu and Kashmir Government Medical
Colleges (Selection of Candidates for Post Graduate Degree and Diploma Courses) Procedure Order, 1995, is to provide services of doctors in
the rural areas of the State to safeguard and promote the health of people residing in the remote and backward regions. I find this object, which, is
sought to be achieved by the State Government in' issuing Government Order No. 83HME of 2007 and SRO 430 of 2007, to be laudable
because this action of the State Government is a step towards achieving one of the Directive Principles of the State policies enshrined in Section 24
of the Constitution of Jammu and Kashmir.
That apart, every citizen has a fundamental right to lead life with dignity, which right flows from Article 21 of the Constitution d' India. Living with
dignity would, inter alia, include availability of avenues, material and expertise, for availing health services. One may not be able to live with dignity
unless he is in a sound state of mind and health. A sick body may not be able to sustain and nourish a healthy mind which is necessary for enjoying
life with dignity. Sound state of mind .may be had only if there were avenues available where from such facilities may be had to keep one's body in
lit condition. It is common knowledge that those residing in rural areas of the State, neither possess the means to arrange for private health services
nor has the State succeeded in providing sufficient health care centers where such persons may be able to avail of facilities to remain in fit state of
health, so as to enjoy life with dignity and in its true sense.
The Government order and the SRO issued by it is thus, certainly a step in the direction of achieving the object contemplated by Section 24 of the
Constitution of Jammu and Kashmir, Besides that, it is step of the State government in ensuring protection of fundamental rights of those living in
rural areas to enjoy life with dignity, which right flows from Article 21 of the Constitution of India. The restriction placed on the inservice doctors to
participate in the Entrance Test for undergoing Post Graduate Courses/ Super Specially Courses in the Medical Colleges of the State, thus satisfies
the object sought to be achieved by the State in improving public health of (hose residing in rural areas and the restriction placed on the eligibility of
the petitioners to undergo Post Graduate Courses/ Super Specialty Courses in the Medical Colleges of the State, has a rational relation with the
object which the State government wants to achieve by ensuring presence of doctors in rural areas so that it is able to achieve the object
contemplated by Section 24 of the Constitution of Jammu and Kashmir State and further ensures protection of fundamental ' rights of those living in
rural areas.
Even otherwise, steps taken by the State Government to achieve the directive principles of State policy enshrined in its Constitution would partake
the character of reasonable restriction contemplated by Article 14 of the Constitution of India. I am supported in taking this view by a judgment of
Hon'ble Supreme Court of India in State of Madhya Pradesh & Ors vs. Gopal D Tirthani, reported as AIR 2003 SC 2952, where, while dealing
.with the question of preference to those serving in rural areas, it had been found that the purpose soug to be achieved in giving benefit to those
who had served rural areas,was laudable and would not suffer from the vice of discrimination or arbitrariness.
SRO 430 of 2007 restricts participation in the Entrance Test for under going Post Graduate Courses/ Super Specialty Courses in. the Medical
Colleges of the State, of only, a few, and that too for a limited period of two years whereas, at the same time, it ensures fulfillment of directive
principles of. the State policy as also protection of fundamental rights of numerous persons residing in remote areas of the State. Even if one were
to concede petitioners' right of participation for undergoing Post Graduate Courses/ Super Specialty Courses in the Medical Colleges of the State
without any restriction (which, however, is not the position, in view of the discussion made hereinabove), that right of their's, has to relent, and bow
before, the public purpose sought to be achieved by the State in benefiting numerous persons residing in rural areas, and the fundamental rights of
those residing in rural areas of the State.
Judgment cited by learned counsel for the petitioners have not viewed the issue which had arisen for consideration in this writpetition from the angle
it has been viewed in this judgment. These judgments are even otherwise distinguishable on facts and not in line with the view expressed by Hon'ble
Supreme Court of India in Gopal D Tirthani's case supra.'These judgments are therefore irrelevant for decision of the writ petition.
I therefore, do not find SRO 430 of 2007 to be arbitrary, discriminatory or in any manner violative of Article 14 of the Constitution of India.
Restriction placed on inservice doctors on their eligibility to participate in the Entrance Test for undergoing Post Graduate Courses/ Super
Specialty Courses in the Medical Colleges of the State only when they had actually served in rural areas for t years, is found to be reasonable and
justified.
This petition is, accordingly found to be without any merit it is accordingly dismissed vacating all interim orders passed during the currency of the
writ petition,