JUDGMENT : ( 1. ) THE petitioners who are working as doctors in the dispensaries maintained under Employees State Insurance Act, 1948, are challenging Rules 9. 5 b (i), (ii), (iii) and 8. 5 (b) of the Rules for Post-graduation (M. D. / M. S. Course) in clinical and Non-Clinical Disciplines in Medical Colleges in Madhya Pradesh, giving weightage to the Assistant Surgeons in State Medical Services and not to the e. S. I. doctors and consequentially their non-selection for doing post-graduation. ( 2. ) THE petitioners are working as doctors on the post of E. S. I. Medical officers/ Assistant Surgeons in the Employees State Insurance Services under the department of Labour, State of M. P. , having been duly appointed under section 58 of the Act read with State Insurance Service Rules. All these 5 petitioners had applied for doing post-graduation in different disciplines in 1987 quota in Medical colleges at Indore and Bhopal, Rule 9. 2 (a) provides that applications shall be invited for doing post-graduation from Assistant Surgeons serving in the State and along with necessary enclosures the applications shall be submitted to the Director of Medical Services and those serving under the Director E. S. I. , through him, showing thereby that the E. S. I. doctors have also to apply in the reserved quota of assistant Surgeons. But under Rule 9. 5 (B) certain weightages are given to the assistant Surgeons serving in the State services only. Under sub-clauses (i) and (ii)the doctors who are working in scheduled areas or rural areas not within 50 kms. from the municipal limits or 20 kms. from the notified areas will be given 10 marks for each year of service in scheduled area and 5 marks for each year of service in rural area subject to the maximum of 50 marks. Under sub-clause (iii) for each block of 20 sterilisation operations done by a, candidate will earn 5 marks subject to maximum of 100 marks. These rules were to the great prejudice of the doctors working under Employees Insurance Services. It is a well-known fact that the hospitals and dispensaries are located only in industrial and urban area attached to e. S. I. scheme. E. S. I. medical service has been constituted to discharge the statutory obligations in the State under various labour legislations including E. S. I. Act. It is a well-known fact that the hospitals and dispensaries are located only in industrial and urban area attached to e. S. I. scheme. E. S. I. medical service has been constituted to discharge the statutory obligations in the State under various labour legislations including E. S. I. Act. The doctors working in E. S. I. services, due to the inherent nature and condition of their service, do not get any opportunity to work in scheduled areas or rural area and cannot obtain weightages marks provided under Rule 9. 5 B (i to iii) which is available to their counter-parts in State services. Similarly, the doctors in E. S. I. services cannot conduct sterilization operations in sufficient numbers for want of adequate number of patients and facility in their hospitals and dispensaries. One of the petitioners, petitioner No. 4 conducted a few sterilisation operations but he was informed by communication dated 15-9-1987 not to undertake sterilisation operations since his dispensary is not well-equipped for that purpose. So the E. S. I. doctors are handicapped from securing additional marks by doing service in scheduled or rural areas and by doing sterilisation operations. So the doctors working in the State services get ample opportunity to work in rural and scheduled areas and doing sterilisation operations, thereby get an unfair advantage or an edge over E. S. I. doctors, in determining comparative merit, for admission to the post-graduate courses. Although the petitioners were more meritorious than some of the assistant Surgeons who were given admission, they have been deprived of the admission because they did not get any weightage. Rule 9. 5 B (i to iii) deserves to be struck down as being discriminatory to doctors in E. S. I. services, who constitute a separate class, deserving fair and equal treatment. It is further contended that under rule 8. 5 (b) (ii) weightage of 10 marks is given for participating in inter-university event and/or for securing a prize at an All-India event on behalf of college or university. It may be noticed that inter-university event or all India event has nowhere been defined in the admission rules. So this particular rule is utterly vague and it provides unlimited scope to clever candidates by producing bogus certificates of awards and prizes which are neither inter-university nor all India. It may be noticed that inter-university event or all India event has nowhere been defined in the admission rules. So this particular rule is utterly vague and it provides unlimited scope to clever candidates by producing bogus certificates of awards and prizes which are neither inter-university nor all India. The rule so far has been used to procure bogus certificates and awards only to get weightage. This rule deserves to be struck down because it gives unfair advantage to less meritorious candidates. The petitioner No. 1 who is a scheduled tribe has not been given admission although there is reservation for scheduled castes and scheduled tribes. ( 3. ) THE respondents in their return contended that Rule 9. 5 B (i to iii) and the rule 8. 5 B (ii) are valid rules and they are not discriminatory. It is open to the E. S. I. doctors to get them posted in the scheduled areas to get advantage under Rule 9. 5 B (i), as for example, Shahdol and Raigarh are scheduled areas where there are dispensaries run under Employees State Insurance Service. It is well-known that doctors avoid going to scheduled areas and rural areas, with the result the hospitals there invariably remain vacant. A provision has, therefore, been made under Rule 9. 5 B (i) and (ii) to give additional marks to doctors who went to work in scheduled or rural areas as incentive for doing post-graduation. Sterilisation operations are of two kinds, one performed on male and the other performed on female, commonly called VT and TT respectively. V. T. operations can be performed in any dispensary including E. S. I. dispensaries. Even private doctors are also doing sterilisation by availing of the facilities in private dispensaries or hospitals. Voluntary organisations are also doing sterilisations for promotion of family planning under health and Family Welfare Department. In fact, many dispensaries run under e. S. I. Scheme are without doctors. Most of the Government dispensaries are in urban areas. Rule 8. 5 (b) (ii) is applicable to all doctors who have participated in inter-university or All-India events. There is no reservation in the Assistant surgeons quota for scheduled castes and scheduled tribes. There is reservation for scheduled castes and scheduled tribes in merit quota for doing post-graduation. Most of the Government dispensaries are in urban areas. Rule 8. 5 (b) (ii) is applicable to all doctors who have participated in inter-university or All-India events. There is no reservation in the Assistant surgeons quota for scheduled castes and scheduled tribes. There is reservation for scheduled castes and scheduled tribes in merit quota for doing post-graduation. A few seats are reserved for Assistant Surgeons in State Medical Services who constitute a different class in themselves who are serving in the State service for the last 5 years. A further reservation for members of scheduled castes and scheduled tribes is not proper. Therefore, the petition is devoid of any merit. ( 4. ) THE learned Deputy Advocate General contended that Rule 9. 1 is about selection of Assistant Surgeons for doing post-graduation and under Rule 9. 3 assistant Surgeons will be those who are appointed in accordance with the procedure prescribed under M. P. Medical Services (Gazetted) Recruitment Rules, whereas the petitioners have been appointed as Insurance Medical officer/assistant Surgeons under Employees State Insurance Act, 1948, and a separate service has been constituted for that purpose by the Labour Department under State Insurance Service Rules and, therefore, the petitioners belong to a different category. Being recruited under different set of rules, they can make no grievance if the rules which are applicable to the State Medical Services have provided certain weightage. Therefore, there is no question of any discrimination. But according to the learned counsel for the petitioners this point has not been specifically raised in the return and under Rule 9. 2 applications have also to be invited from E. S. I. doctors/assistant Surgeons through their Director and, therefore, they cannot be discriminated because all of them have to be selected in the reserved quota of Assistant Surgeons for post-graduation. It may be mentioned here that there are about 5000 Assistant Surgeons in the State Medical Services while there are about 300 doctors in the E. S. I. dispensaries and, in fact, a concession has been given by accommodating the E. S. I. doctors in the quota of Assistant surgeons, They cannot now assert that certain weightages given to the Assistant surgeons which are not applicable to them, should be waived or struck down. Certain weightages have been given to the Assistant Surgeons as an incentive so that they would like to work in the scheduled or rural areas of the State as there is a tendency amongst the doctors not to go to the interior villages. All the Assistant surgeons do hot get weightage under clause 9. 5 B (i to ii) unless they are posted away from the municipal areas. So, in fact, those Assistant Surgeons alone can take the plea that they are being discriminated and not the petitioners. Though this question has not been raised in the return but the burden is on the petitioners to show how they have been discriminated. The burden of showing that the classification rests upon an arbitrary and not reasonable basis is upon the person who challenges the classification as violation of guarantee of equal protection. Further if any state of facts cap reasonably be conceived, that would sustain the classification and the same has to be upheld. The Supreme Court in Air India vs. Nergesh Meerza, AIR 1981 SC 1829 , has held "that Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the object sought to be achieved so that in such cases Art. 14 will be completely out of the way. Article 14 certainly applies where equals are treated differently without any reasonable basis. Where equals and unequals are treated differently Article 14 would have no application. " It is the petitioners own case that E. S. I. doctors are a separate class but they should not be discriminated with the Assistant Surgeons. Being a separate class, they are not entitled to the same rights and facilities as are given to the Assistant Surgeons. ( 5. ) THE learned counsel, however, strongly relies on a decision of the Orissa high Court in Salil Kumar vs. State, AIR 1988 Ori. Being a separate class, they are not entitled to the same rights and facilities as are given to the Assistant Surgeons. ( 5. ) THE learned counsel, however, strongly relies on a decision of the Orissa high Court in Salil Kumar vs. State, AIR 1988 Ori. 146 , held: "the object being the selection of the meritorious and the deserving candidates for admission to post-graduate medical course, tilting of the scale against the more meritorious by providing for weightage for rural service or for having reached the target under the family planning programme, is arbitrary and unreasbnable and invalid. Giving of any weightage which has no relation to and connection with the merit and excellence of a candidate is undesirable and invalid. It is open to the government to provide incentive or reward the doctors who are willing to serve or have served in the rural areas monetarily or by granting serving benefits but not in such a manner that sub-standard is considered the better or more meritorious". The Full Bench decision is based on the Supreme Court decision in Dr. Dinesh kumar vs. Motilal Nehru Medical College, AIR 1986 SC 1877 about the weightage equivalent to 15% of the total marks obtained has to be given to a candidate if he had put in minimum of 3 years rural service. The Supreme Court held that it is, of course, eminently desirable that some incentive should be given to the doctors to go to the rural areas because there is concentration of doctors in the urban areas and the rural areas appear to be neglected. But we must remember that what we are regulating are admissions to post-graduate courses and if we want to produce doctors who are M. D. or M. S. , particularly surgeons who are going to operate upon human beings, it is of the utmost importance that the selection should be based on merit. Moreover, we are extremely doubtful if a candidate who has rendered three years rural service for the purpose of getting weightage of 15% would go back to the rural area after he has got M. D. or M. S. Degree. We are, therefore, of the view that no weightage should be given to a candidate for rural service rendered by him so far as admissions to post-graduate courses are concerned". Clearly, those cases have no application here. We are, therefore, of the view that no weightage should be given to a candidate for rural service rendered by him so far as admissions to post-graduate courses are concerned". Clearly, those cases have no application here. There, the weightage given for working in the rural areas was equivalent to 15% of the total marks obtained. Here the total marks for MBBS was 3400, and if 15% weightage is given it will come to 510 marks. Therefore, it has been held that if a candidate secures 51% of marks on merit with requisite rural service, he would secure admission while a candidate securing 60% of marks will be denied the opportunity. That is not the case here. Here, for working in the scheduled or rural areas, a candidate will be entitled to at the most 50 marks which will come to 1. 7%. For doing requisite sterilisation operations, maximum weightage given is 100 marks which comes to 3. 4%. So it is clear that Only meritorious candidates alone deserve to be considered for admission to the post-graduation courses but some incentive is for doing rural work or for doing sterilisation operations, they are given some weightage which does not affect overall merit materially. Nothing prevented the petitioners from seeking a job of Assistant Surgeons in the State Medical Services if they wanted to get advantage of these weightages. Regarding giving weightage for having participated in "inter-University" or "all-India" events, this weightage is given to all candidates and it is an encouragement to the students to participate in such events. There is nothing vague or uncertain about it. Though it has been alleged that this rule has been misused for getting bogus certificates, but no concrete case has been pointed out. It has not been shown which candidate got weightage without having fulfilled the condition laid down in the rule. The rule does not provide unlimited scope for manipulation as has been alleged. Again, it is only 10 marks i. e. 3. 4% of the aggregate marks. Therefore, giving of these weightages do not amount to hostile discrimination or serious prejudice to the candidates. Lastly, it has been urged that while petitioner No. 1 Dr. Smt. Asha Khalko got 53. 63% of marks, and even after weightage the candidates up to 53. 23% marks have been given admission in Diploma in Gynaecology and Obstetrics. Similarly, petitioner No. 4 dr. Lastly, it has been urged that while petitioner No. 1 Dr. Smt. Asha Khalko got 53. 63% of marks, and even after weightage the candidates up to 53. 23% marks have been given admission in Diploma in Gynaecology and Obstetrics. Similarly, petitioner No. 4 dr. Jayant Yadav got 53. 9% marks while candidates upto 53. 79% marks have been given admission in M. D. Radiology and these two petitioners have been denied admissions. There is no merit in this contention. Dr. Yadav has been subsequently given admission and he is doing M. D. in Radiology. Regarding Dr. Smt. Khalko, her application form itself was rejected as there were erasures in the column regarding the number of attempts made to clear MBBS examination which is a valid ground under the rules for rejecting the application. It was necessary to specify the attempts made because 15 marks have to be deducted for each attempt. However, it is contended that she has produced necessary certificates and it could be ascertained from them as to how many attempts she has made for clearing the MBBS examination. Again, there is no merit. The first certificate shows that she had failed but it does not show whether this was her first attempt or subsequent attempts. Even she has not specified in her application that she had failed once. So her application has been rightly rejected. Regarding her claim for reservation of a seat on account of her being a scheduled tribe candidate, there is no basis for the same as has been pointed out in the return that there is no reservation in the quota of Assistant surgeons because that quota itself is a reserved quota. There is reservation for scheduled castes and scheduled tribes candidates in the category of merit candidates only. ( 6. ) UNDER the circumstances, there is no merit in this petition which is accordingly dismissed. There shall be no order as to costs. The outstanding security amount be refunded to the petitioners. Petition dismissed.