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CASE NO.:

Appeal (civil) 5760-5761 of 1999

Appeal (civil) 5910 of 1999

Appeal (civil) 6995-6996 of 1999

Appeal (civil) 562 of 1999

PETITIONER:

K. DURAISAMY & ANR., ETC. ETC. C

Vs.

RESPONDENT:

THE STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT: 23/01/2001

BENCH:

R.C.Lahoti, Doraswamy Raju

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

RAJU, J.

The above appeals have been filed against the decision

of a Full Bench of the Madras High Court dated 1.10.1999 in

Writ Appeal Nos.929/99, etc. The Writ Petition (C) No.562

of 1999 has been filed by a person similarly placed like the

appellants, directly in this Court raising identical issues

as are raised in the appeals, canvassing at the same time

the correctness of the decision of the Full Bench of the

Madras High Court.

Having regard to the question decided by the Full

Bench and the issues raised in the above Appeals and Writ

Petition, it is unnecessary to advert to the factual details

relating to the Courses applied by the respective parties or

as to the total number of seats available, number of seats

reserved, the marks obtained by the respective candidates

and the inter se ranking in the merit list. It is stated

that Civil Appeal No.5910 of 1999 concerns D.M.

(Obstetrics) & (Gynaecology), a post- graduate course, and

the courses involved in the other Appeals and the Writ

Petition are said to be super speciality courses.

The Government of Tamil Nadu, Health and Family

Welfare (MCA) Department, issued G.O.Ms. No.55 dated 9.2.99

laying down the procedure for selection of candidates for

admission to Post- graduate Diploma, Degree, M.D.S. and

Higher Speciality courses for the academic session

1999-2000, with Annexure-I thereto containing the Prospectus

pertaining to Post-graduate Diploma/Degree/M.D.S. courses

and Annexure-II containing the Prospectus relating to Higher

Speciality courses. The Government Order envisaged

reservation confining up to 50% in favour of in-service

candidates on merit basis and further stipulated that 50% of

the seats available in each of the speciality, shall be

allotted exclusively to service candidates. The Government

Order also enumerated various categories of Medical

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Officers, who alone will be treated as service candidates

and considered for selection against the 50% of the seats

allocated exclusively for service candidates. As for the

remaining 50%, referred to as Open Quota, while stipulating

the criteria for selection to what has been referred to as

the remaining 50% Open Quota, it has been stated that all

other eligible Medical Officers, except those enumerated

categories of Medical Officers, shall be eligible to apply

for the same. The further stipulation, which requires to be

noticed, is the one providing that all procedures in respect

of such of those matters enumerated in the relevant clause

of the Order followed during 1998- 1999 shall be followed

for 1999-2000 also. The above stipulations in respect of

allocation of seats exclusively for the service candidates

and the other for non-service candidates have been carried

out in the Prospectus, both relating to the Post-graduate

Degree/Diploma courses as well as the Higher Speciality

courses. So far as the Post- graduate Degree/Diploma

courses are concerned, the same were incorporated under the

heading IX. METHOD OF SELECTION AND ADMISSION, and in

respect of Higher Speciality courses, they were incorporated

under the heading X. METHOD OF SELECTION AND ADMISSION.

The necessary program has been published prescribing the

last date for receipt of application forms, the dates for

undertaking Entrance Examination, publication of merit

lists, etc. After conduct of written Entrance Examination

for the purpose and publication of the results of selected

candidates, it came to be known, according to the

appellants, that they were not selected due to a particular

understanding of the Orders of the Government and

stipulations contained in the Prospectus relating to

earmarking or allocation of seats for in-service candidates

and non-service candidates in a manner by which the claims

of in-service candidates based on merit on the basis of

marks came to be ignored in respect of 50% of the seats

allocated as Open Quota by confining them exclusively to

non-service candidates and considering claims of in- service

candidates like the appellants only in respect of 50%

allocated to and reserved for service candidates.

This resulted in the appellants and others filing Writ

Petitions before the High Court. A learned Single Judge,

while allowing the writ petitions held that reservation of

50% of seats for non-service candidates have to be given

effect to or worked out by selecting candidates from

in-service and non-service, on the basis of merit in the

first instance and thereafter the 50% seats reserved for

in-service candidates shall be filled up by in-service

candidates who could not gain selection on the basis of

merit as against the other 50% earmarked as open. The

learned Judge, even overlooking the fact that a description

of the respective classification has been given, was of the

view that there is no category as non-service candidates,

and it is only the in-service candidates who form a separate

class. The learned Judge also drew inspiration from

decisions of Courts pertaining to reservation under Article

16 (4) of the Constitution of India to hold in these cases

also that those candidates belonging to special categories

who have a reservation in their favour but could get or got

selection purely on the basis of their own merits shall not

be counted against the number reserved for that class or

category and must be treated as having got in against the

seats available in open competition. Aggrieved, some of the

selected candidates who had intervened in the writ petitions

filed in Writ Appeal Nos. 905, 906 and 918 of 1999 but the

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same were dismissed on 18.6.99 even at the stage of

admission, summarily. The appeals filed by the State in

Writ Appeal Nos. 929, 952 to 956 of 1999 came up

subsequently before another Division Bench and finding

themselves unable to agree with order of dismissal of the

earlier appeals, the matters were referred for consideration

by a larger Bench after obtaining orders of the Chief

Justice. This Division Bench was of the view that the

decision of the Single Judge was not correct. Thereupon the

matters were placed before the Full Bench, which, in turn,

reversed the judgment of the learned Single Judge and

dismissed the Writ Petitions.

The Full Bench, whose judgment is under challenge

before us, was of the view that the interpretation given by

the Single Judge, particularly on the basis of the

guidelines of the earlier year cannot be sustained, that the

writ petitioners who participated in the written examination

and selection process duly proclaimed cannot challenge the

same subsequently on finding themselves unsuccessful and

cautioned the authorities to be more careful to avoid vague

clauses/language of doubtful purport and import leading to

unnecessary and avoidable litigation, in future.

The learned counsel for the appellants and the writ

petitioner, while adopting the line of reasoning of the

learned Single Judge in the High Court, vehemently contended

that the interpretation placed by the Full Bench on some of

the clauses in the Government order/prospectus was not

justified in law and that the manner of working out the

policy of reservation indicated by the Full Bench is opposed

to the well-settled principles laid down by Courts in the

matter of implementing reservation policies and if allowed

to stand, according to the appellants, would defeat the

policy and objects of reservation, itself. The learned

counsel for the State supported the reasoning of the Full

Bench by contending that the classification made as service

quota and open quota for non-service candidates for purposes

of confining the respective class/category of candidates to

the percentage earmarked for them exclusively is permissible

and well within the powers of the State which establish,

administer and maintain the Medical Colleges and that such

prescription of quota cannot be treated on par with communal

and other reservations, ordinarily made. It was also urged

that in law there can be different sources of recruitment

under classified heads or categories such as service

candidates and non-service or private candidates, they

having distinct and different identity based on intelligible

criteria and that too when made with a definite purpose and

object.

Before dealing with contentions of parties, it is

useful and necessary to refer to the clauses on which there

had been divergent views of the High Court. The Government

order dated 9.2.99, which forms the basis for the prospectus

issued and the relevant clauses found extracted therein,

lays down the criteria, as follows:-

1. (iii) (a) The reservation will be confined to and

kept at 50% in favour of in-service candidates on merit

basis.

(b) 50% of the seats available in each of the

specialities shall be allotted exclusively to service

candidates.

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(c) If sufficient number of eligible service

candidates are not available for the seats reserved

exclusively for them, such vacancies shall be filled up by

the non-service candidates from the merit list/waiting list

in the respective reserved compartments. If vacancies exist

even after this, such vacancies shall be filled up applying

the order of preference indicated in the prospectus.

(d) The following categories of Medical Officers only

will be treated as Service candidates and considered for

selection against 50% of seats allocated exclusively for

service candidates:-

(1) All Medical Officers selected by the TNPSC and

appointed in Tamilnadu Medical Services on regular basis,

who have put in minimum of 2 years continuous service as on

1.2.99.

(2) Medical Officers (or) Health Officers in the

Public Health Department who have been selected by the TNPSC

and working under the control of DPH & PM and who apply for

Public Health Course i.e. Diploma in Public Health can be

considered as Service candidates for DPH as the above

qualification namely Dip. in Public Health is essential for

declaration of probation. However, to consider under

service quota for MD (SPM), the candidates must have

completed 2 years of service like the other postgraduate

courses.

(3) Medical Officers who have put in 2 years of

continuous service and who are working in :-

(i) Local Bodies/Municipalities in Tamil Nadu.

(ii) Government of India Institutions in Tamil Nadu.

(iii) Public Sector Undertaking and Organisation under

the control of Govt. of India in Tamil Nadu.

(iv)Undertakings and Organisations of Government of

Tamil Nadu. These Medical Officers should produce bona-fide

certificates from the concerned authorities with the

declaration to serve in the respective institutions for a

minimum period of 5 years after completion of the course.

(e) Criteria for selection under 50% open quota:-

All other eligible Medical Officers except those

specified in clause (iii) (d) above are eligible to apply

under 50% open quota.

(iv) (a) The Rule of reservation i.e. 31% for open

competition, 30% for backward classes, 20% for most backward

classes/De-notified communities, 18% for Scheduled Castes

and 1% for Scheduled Tribes shall apply to 50% seats

reserved for service candidates and to the 50% seats to be

filled up on the basis of merit from service and non-service

candidates separately under each speciality.

(b) The rule of reservation shall apply to any course

with 8 seats and above both for open and service quota, in a

discipline.

(v) The cost of application form shall be Rs.600/-

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(Rupees Six Hundred only) for all the courses. The cost of

the application form shall be paid by a crossed Demand Draft

on any Nationalised Bank drawn in favour of the Secretary

Selection Committee KMCH campus Kilpauk, Chennai-600010. As

per G.O. MS No.111 Adi Dravidar & Tribal Welfare Department

dated 22.9.98 SC/ST candidates are exempted from payment of

DD for Rs.600/-

. .

6. The Government direct that all procedures such as

reservation of 25% of seats in Post Graduate Courses for all

India Quota, conduction of Entrance Examination at Chennai

only, eligibility criteria to apply allocation of seats

between open quota and service candidates on 50:50 basis,

the procedure for filling up of vacant seats allotted to

service candidates in the event of non- availability of

candidates, awarding of one mark to each answer with correct

response, Negative Mark System for incorrect response,

determination of inter se merit of candidates obtaining

equal marks, mentioning of number of seats in each

speciality college-wise and course-wise in the Annexure to

the prospectus, payment of stipend and other procedures

relating to execution of security bond and surety bond,

obtaining written undertaking from all non-service

candidates to serve within the country for a period of not

less than 5 years, computerisation of application/coding

sheet, evaluation of answer papers, taking of anti-

Hepatitis-B injection by selected candidates and incurring

of expenditure for the conduct of entrance examination,

scrutiny of applications, evaluation, the expenditure

relating to introduction of optical mark reader system in

admission to various courses from the personal deposit

account maintained by the Secretary Selection Committee

followed during 1998-99 shall be followed for the academic

year 1999-2000 also.

That the Government possess the right and authority to

decide from what sources the admissions in Educational

Institutions or to particular disciplines and courses

therein have to be made and that too in what proportion, is

well established and by now a proposition well settled, too.

It has been the consistent and authoritatively settled view

of this Court that at the super speciality level in

particular and even at the Post-Graduate level reservations

of the kind known as protective discrimination in favour

of those considered to be backward should be avoided as

being not permissible. Reservation, even if it be claimed

to be so in this case, for and in favour of in- service

candidates, cannot be equated or treated on par with

communal reservations envisaged under Articles 15(4) or

16(4) and extended the special mechanics of their

implementation to ensure such reservations to be the minimum

by not counting those selected in open competition on the

basis of their own merit as against the quota reserved on

communal considerations.

Properly speaking, in these cases, we are concerned

with the allocation of seats for admission in the form of a

quota amongst in- service candidates on the one hand and

non-service or private candidates on the other and the

method or manner of working out in practice the allocation

of seats among the members of the respective category.

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Could the State Government have legitimately made a

provision allocating 50% of seats exclusively in favour of

in-service candidates and keep open the avenue for

competition for them in respect of the remaining 50% along

with others denying a fair contest in relation to a

substantial or sizeable number of other candidates, who are

not in service and who fall under the category of

non-service candidates, will itself be open to serious

doubt. One such attempt seems to have been put in issue

before the Madras High Court which held that reservation in

favour of in-service candidates for the academic year

1992-93 should be confined to 50% and awarding of two

additional marks, instead of one additional mark for each

completed year of service in primary health centres, was

unconstitutional and when the matter was brought to this

Court, in the decision reported in State of Tamil Nadu Vs.

T. Dhilipkumar & Ors. [1995 (5) SCALE 67], the decision of

the High Court has been upheld. This Court also further

observed that the Government should appoint a highly

qualified committee to determine from year to year what, in

fact, should be the percentage-wise reservation required for

in-service candidates, having regard to the then prevailing

situation and that the percentage of fifty percent shall, if

found appropriate, be reduced.

The stipulations governing the selection for

admissions in these cases have got to be viewed and

construed in the above backdrop of events and legal

position. The learned Single Judge, in our view, was

certainly not right in equating the provisions made for

allocation of seats in the form of fixation of quota in this

case with the usual form of communal reservations and

allowing himself to be carried away by the peculiar method

of working out such reservations in order to ensure adequate

representation to such candidates, and applying those

principles to construe a provision of the nature involved in

these cases. Yet another error in the reasoning of the

learned Single Judge lies in his assumption that open

quota seats have to be thrown open to all and are meant

only to be filled up purely on the basis of merit

performance and no one from even the class of candidates in

whose favour a special quota has already been provided can

be excluded from consideration as against the open quota.

This reasoning of the learned Single Judge not only ignores

the object and scheme underlying the allocation of seats for

admissions for the academic year 1999-2000, but has the

consequence of rewriting the Prospectus and introducing

altogether a different pattern of admissions, overriding the

policy of the Government aimed at meeting out equal justice

and affording equality of opportunity to the different

categories classified for the purpose. If the Government

can be said to possess the power to fix a quota for the

exclusive benefit of in-service candidates, it is beyond

comprehension or dictates of either reason or logic as to

why the Government cannot equally exclusively earmark the

remaining seats in favour of non-service or private

candidates, thereby confining the claims of service

candidates to the number of seats earmarked and allocated to

them. As there can be a classified category of service

candidates, it is open to the Government to make

classification of all those other than those falling in the

category of service candidates, as non-service candidates

and allocate the remaining seats after allotment to the

service candidates for exclusive benefit of the source of

non-service or private candidates. There is nothing in law

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which deprive the Government of any such powers and no such

impediment has either been brought to our notice at the time

of hearing or seems to have been brought to the notice of

the learned Single Judge to warrant any such construction,

as has been adopted by him. We are also of the view that it

does not lie in the mouth of the writ petitioners to raise a

bogey of selection based on merit alone, only in respect of

a portion of the seats available for admission to non-

service candidates, when they belong to and are part of a

category or class who have got in their favour fifty percent

of the number of seats in each of the disciplines allocated

to their category of in-service candidates to be filled up

exclusively from such in-service candidates on the basis

of their own inter se merit and not on the overall merit

performance of all the candidates - both in-service and

non-service put together. The writ petitioners are found to

have applied as in- service candidates and merely because

they could not be selected within the number of seats

earmarked for their category or class on the basis of the

inter se merits among their own class, they cannot be

allowed to contend to the contrary in retrospect and on hind

sight experience of having obtained more marks, than those

who got selected as against the seats earmarked and

allocated to non-service candidates. The justification,

both in law and on facts for exclusive allocation and

stipulation of a definite quota or number of seats for

non-service or private candidates, in our view, lies in the

very principle which warranted or enabled the fixation of a

quota of fifty percent of seats and exclusively allotted to

in-service candidates. Any countenance of such claims of

the appellants is likely to also endanger the very

allocation of 50% of the seats exclusively to the category

of in-service candidates, too.

On a consideration of the reasoning of the Full Bench

as also the construction placed upon the Government Order

and the Prospectus, we are of the view that State

Government, in the undoubted exercise of its power, has

rightly decided, as a matter of policy, so far as the

admissions to super speciality and Post Graduate

Diploma/Degree/MDS courses for the academic session

1999-2000 are concerned to have scheme or pattern of two

sources of candidates based upon a broad classification into

two categories, i.e., in-service candidates and non-service

or private candidates with each one of them allocated

exclusively for their own respective category of candidates

fifty percent of the seats, the ultimate selection for

admission depending upon the inter se merit performance

amongst their own category of candidates. As pointed out by

the Full Bench, the change in the nomenclature of the

categorisation from open competition in 1998-1999, to

open quota in 1999-2000 and the conspicuous omission in

the scheme and the Prospectus for 1999- 2000 of a specific

stipulation like the one contained in clause X (5) in the

Prospectus for 1998-1999 that the 50% of the seats available

for open competition shall be made available for selection

and admission of both service and non-service candidates, as

also the stipulation contained in the Government Order and

the Prospectus for 1999-2000 under the caption criteria for

selection under 50% open quota, which specifically reads

that all other eligible Medical Officers except those

specified in clause (iii)(d) above (meaning thereby Medical

Officers who will be treated as service candidates and

allowed to apply as such) are eligible to apply under 50% of

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the open quota, supports the stand of the State Government

and the Selection Committee and justify the selections for

admission already made by them. The further stipulation

that the reservation will be confined to and kept at 50% in

favour of in-service candidates on merit basis, coupled with

the other provisions noticed above make it abundantly clear

that the selection of in-service candidates is confined to

and has to be kept at 50% only of the total seats and not

against any of the other seats, exclusively earmarked for

the non-service or private candidates.

The mere use of the word reservation per se does not

have the consequence of ipso facto applying the entire

mechanism underlying the constitutional concept of a

protective reservation specially designed for the

advancement of any socially and educationally backward

classes of citizens or for the Scheduled Castes and

Scheduled Tribes to enable them to enter and adequately

represented in various fields. The meaning, content and

purport of that expression will necessarily depend upon the

purpose and object with which it is used. Since reservation

has diverse natures and may be brought about in diverse ways

with varied purposes and manifold objects, the peculiar

principles of interpretation laid down by the Courts for

implementing reservations envisaged under the Constitution

in order to ensure adequate and effective representation to

the backward classes as a whole cannot be readily applied,

out of context and unmindful of the purpose of reservations

as the one made in this case, more to safeguard the interest

of candidates, who were already in service to enable such

in-service candidates to acquire higher and advanced

education in specialised fields to improve their

professional talents for the benefit of the patients to be

treated in such Medical Institutions where the in-service

candidates are expected to serve. That apart, where the

Scheme envisaged is not by way of a mere reservation but is

one of classification of the sources from which admissions

have to be accorded, fixation of respective quota for such

classified groups, the principles at times applied in

construing provisions relating to reservation simpliciter

will have no relevance or application. Though the

prescription of a quota may involve in a general sense

reservation in favour of the particular class or category in

whose favour a quota is fixed, the concepts of reservation

and fixation of quota drastically differ in their purport

and content as well as the object. Fixation of a quota in a

given case cannot be said to be the same as a mere

reservation and whenever a quota is fixed or provided for

one or more of the classified group or category, the

candidates falling in or answering the description of

different classified groups in whose favour a respective

quota is fixed have to confine their respective claims

against the quota fixed for each of such category, with no

one in one category having any right to stake a claim

against the quota earmarked for the other class or category.

Since we are of the view that the Full Bench has correctly

come to the conclusion that the scheme adopted for selection

of candidates for admissions in question provided for a

definite and fixed quota for the respective classified

sources of admission and the reasons assigned therefor do

not suffer from any infirmity whatsoever to call for any

interference at our hands, these appeals fail and are

dismissed.

In view of the above discussion, it is unnecessary for

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us to deal with the issue of estoppel on which also the Full

Bench has chosen to reject the claim of the appellants. In

view of the conclusion of ours in the appeals, the Writ

Petition also shall stand dismissed. There will be no order

as to costs.