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2000 DIGILAW 742 (KAR)

BANU v. T. VS STATE OF KARNATAKA

2000-11-15

P.VISHWANATHA SHETTY

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VLSHWANATHA SHETTY, J. ( 1 ) THOUGH these petitions are posted for preliminary hearing in 'b' group, with the consent of the learned Counsel appearing for the parties, these petitions are taken up for final hearing and disposed of by this order. ( 2 ) THE petitioners in these petitions are presently working as lady Medical Officers in the 5th respondent - Karnataka Power corporation Ltd. (herein after referred to as the "corporation" ). In these petitions, they have prayed for striking down Rule 2 (h) of the karnataka Conduct of Entrance Test for admission to Post-Graduate degree and Diploma (Medical and Dental ). Courses Rules, 1987 (hereinafter referred to as the "rules"), as unconstitutional; or in the alternative to strike down the words 'medical' and 'under the karnataka Societies Registration Act 1961' in the said Rule, as unconstitutional. ( 3 ) SRI Rajeshwar, learned Counsel appearing for the petitioners strongly submitted that the petitioners are working in the 5th respondent-Corporation, which is also a Government of Karnataka undertaking 'and they are similarly situated like the doctors serving in autonomous Medical Institutions established under the Karnataka societies Registration Act, 1961; and that being the position, there is absolutely no justification to restrict the admission to the post graduate course only to the in-service candidates who are working in autonomous medical institutions established by the Government of Karnataka under the Societies Registration Act. It is his submission that the petitioners who are working in the 5th respondent corporation, also treat the members of the general public and that being the position, for all practical purposes, the petitioners have to be treated as doctors employed and working in autonomous institutions established by the Government of Karnataka under the societies Registration Act. He submits that the classification made for giving preferential treatment to the employees of the autonomous institutions established by the Government of Karnataka as against the petitioners who are employees of the 5th respondent which is also a Government of Karnataka undertaking, is highly unreasonable, arbitrary and discriminatory in nature and violatlve of rights guaranteed to the petitioner under Article 14 of the Constitution of india. He also submitted that even if the classification Is held to be reasonable, there is absolutely no nexus with the object sought to be achieved by the limiting the admission to post graduate purse only in respect of the employees working in autonomous Institutions he submitted that the object of reserving seats for study of post graduate course is to improve the quality of medical service by the doctors who are in-service and that being the object, there cannot be any basis or nexus or making classification of doctors who are working in autonomous institutions and other Government of karnataka undertakings. In support of his submission, he relied upon the decision of the Supreme Court of India in the case of DEEPAK sibal vs PUNJAB UNIVERSITY AND ANOTHER and drew my attention to paragraphs 9 and 10 of the judgment. ( 4 ) HOWEVER, Sri Vishwanath, learned Additional Government Advocate appearing for the respondents strongly resisted the contention of the learned Counsel appearing for the petitioners. He pointed out that when admission to post-graduation is provided among the in-service candidates, Rule 2 (h) of the Rules only defines as to who is an in-service candidate. While so defining, a person belonging to Karnataka Heaith and Family Welfare Services, the karnataka Medical Education Services, the doctors working in ESI scheme and autonomous Medical Institutions established by the government under the Karnataka Societies Registration Act, 1. 961 are also made as in-service candidates by giving an extended meaning to in service candidates. He points out that it has been done keeping in mind the larger public interest that the doctors working in autonomous medical institutions established by the government also should get an opportunity to acquire post graduation qualification so that their services can be better utilised to serve the larger public interest. Therefore, he submits that the State In its wisdom, keeping in mind that the doctors working in the autonpmous medical institutions also must have an opportunity to acquire higher post graduation qualification, the said classification made cannot be claimed either as arbitrary, unreasonable or discriminatory in nature solely on the ground that the doctors working in an industrial unit like the 5th respondent ape excluded from consideration. It is his submission as to who should be treated as in-service candidates is a matter of policy and such a policy decision, though it is incorporated in the form of a rule, unless such a policy decision on the face of it is arbitrary and discriminatory in nature. This Court cannot interfere with the said discretion in exercise of its power under Articles 226 and 227 of the Constitution of India. He also referred to me the statement made at paragraph 4 of the statement of objections, explaining the circumstances under which the classification in question has been made. ( 5 ) HAVING heard the learned counsel appearing for the parties, the only question that would arise for consideration in these petitions is as to whether the Rule 2 (h) of the Rules, which excludes the doctors working in the 5th respondent industrial undertaking from being considered for admission to the post-graduation course Is required to be declared as illegal and unconstitutional. 4. However, Sri Vishwanath, learned Additional Government advocate appearing for the respondents strongly resisted the contention of the learned Counsel appearing for the petitioners. He pointed out that when admission to post-graduation is provided among the in-service candidates, Rule 2 (h) of the Ruies only defines as to who is an in-service candidate. While so defining, a person belonging to Karnataka Health and Family Welfare Services, the karnataka Medical Education Services, the doctors working in ESI scheme and autonomous Medical Institutions established by the government under the Karnataka Societies Registration Act, 1961 are also made as in-service candidates by giving an extended meaning to in service candidates. He points out that it has been done keeping in mind the larger public interest that the doctors working in autonomous medical institutions established by the government also should get an opportunity to acquire post graduation qualification so that their services can be better utilised to serve the larger public interest. Therefore, he submits that the State in its wisdom, keeping in mind that the doctors working in the autonomous medical institutions also must have an opportunity to acquire higher post graduation qualification, the said classification made cannot be claimed either as arbitrary, unreasonable or discriminatory in nature solely on the ground that the doctors working in an industrial unit like the 5th respondent are excluded from consideration. It is his submission as to who should be treated as in-service candidates is a matter of policy and such a policy decision, though it is incorporated in the form of a rule, unless such a policy decision on the face of it is arbitrary and discriminatory in nature. This Court cannot interfere with the said discretion in exercise of its power under Articles 226 and 227 of the Constitution of India. He also referred to me the statement made at paragraph 4 of the statement of objections, explaining the circumstances under which the classification in question has been made. 5. Having heard the learned counsel appearing for the parties, the only question that would arise for consideration in these petition is as to whether the Rule 2 (h) of the Rules, which excludes the doctors working in the 5th respondent industrial undertaking from being considered for admission. to the post-graduation course is required to be declared as illegal and unconstitutional. ( 6 ) BEFORE I proceed to consider contentions urged, it is useful to refer to 2 (h) of the Rujes which reads as hereunder:- "rule 2 (h) : In-service candidate means, a person belonging to the Karnataka Health and Family welfare Service. The karnataka Medical Education Service, ESI Scheme (Medical services) and autonomous Medical Institutions established by the government under the Karnataka Societies Registration Act, 1961 including the person deputed from such services to any other foreign service. " ( 7 ) AS it could be seen from Rule 2 (h) of the Rules, as extracted above, it is apparent that an extended definition to an in-service candidate has been given by including within the meaning of in-service candidates the persons belonging to the Karnataka Health and Family Welfare Services, Karnataka Medical Education Service, esi Scheme (Medical Services), and autonomous Medical Institutions established by the Government under the Karnataka Societies registration Act, 1961. Therefore, the persons who are made eligible for admission to Post-Graduate Degree and Diploma Course are the doctors primarily in Government service and working in the ESI hospitals and autonomous medical institutions, established by the government. Therefore, the persons who are made eligible for admission to Post-Graduate Degree and Diploma Course are the doctors primarily in Government service and working in the ESI hospitals and autonomous medical institutions, established by the government. Now, the question is whether the classification made among the doctors working in the Government service and two other institutions, referred?to above, and making them eligible for admission for study of post graduate and diploma course while excluding the doctors employed in other institutions and undertakings established by the Government of Karnataka, be held as unreasonable, discriminatory or arbitrary in nature and in violation of the rights guaranteed to the doctors who are not falling under Rule 2 (h) of the rules. In my considered view, it is not possible to take such a view. At paragraph 3 and 4 of the Statement of objections, it fs stated as follows:- "para. 3. It is submitted that the petitioners are working in karnataka Power Corporation Limited Hospitals, comes under public undertakings. These Public Undertakings established under the Karnataka Municipal corporations Act, 1976 and hence the petitioners are not eligible for selection to post graduate courses under in-service quota on the basis of their seniority. It is submitted that as per the rules, out of total number of seats reserved for in-service candidates, 3% of the seats shall be reserved in both Degree and Diploma Courses for doctors employed in the autonomous medical institutions established by the Government under the Karnataka Societies Registration Act of 1961. It is submitted that the Kidwai Institute of Anchology bangalore, Sri Jayadeva Institute of Cardiology Bangalore, Sanjay gandhi Accident and Rehabilitation Centre, Bangalore, Karnataka institute of Medical Sciences Hubli and Vijayanagara Institute of medical Sciences, Bellary are the autonomous medical institutions under the above said Rules. 4. It is submitted that there is a reasonable classification among the doctors employed under the public undertaking sectors and the doctors working. under the autonomous medical institutions. The doctors employed in the public service cannot be equated to the doctors serving in the autonomous and working in the Health and Family Welfare Service. The doctors employed by the Public undertakings are required to treat only the employees of the Corporation and whereas, the doctors employed, in the categories mentioned above, i. e. , the autonomous medical institutions are required to treat the public in general. The doctors employed by the Public undertakings are required to treat only the employees of the Corporation and whereas, the doctors employed, in the categories mentioned above, i. e. , the autonomous medical institutions are required to treat the public in general. In that view of the matter, the contentions urged by the petitioners that contentions under Rute 2 (h) excluding the petitioners from the definition of in service candidates is discriminatory and viotetive under Article 14 of the Constitution of India. Not only devoid of merits besides being untenable under law. The said contention or the petitioners is wholly misconceived. The impugned Rule does not suffer from any legal infirmities. The impugned Rule is valid and proper. " ( 8 ) FROM the stand taken in the statement of objections, it is clear that out of the total number of seats reserved for in-service candidates, only three per cent of the seats are reserved in both degree and Diploma courses for doctors employed in autonomous medical institutions - established by the Government of Karnataka under the Societies Registration Act. The number of autonomous institutions established by the State of Karnataka are only five. As it could be seen from the facts set out in the statement of objections, out of the five institutions, Karnataka Institute of Medical Sciences, hubli and Vijayanagar Institute of Medical Sciences, Bellary were earlier Government Medical Colleges which were part of Department of Government. ( 9 ) IN my view, the doctors who are in Government service and also working in autonomous institutions established by the government under the Societies Registration Act, cannot be equated to the doctors working in the industrial units like the fifth respondent - Corporation. It is the case of the State that the doctors who are in government service and also employed in autonomous institutions referred to above, would generally cater to the needs of the ailing public. In my view, there cannot be any dispute with regard to this assertion made on behalf of the State. No doubt, the learned Counsel appearing for the petitioners submits that the doctors employed in the industrial undertakes like the fifth respondent-Corporation also cater to the needs of the patients other than employed in the industrial units, but I am unable to accept the said assertion. No doubt, the learned Counsel appearing for the petitioners submits that the doctors employed in the industrial undertakes like the fifth respondent-Corporation also cater to the needs of the patients other than employed in the industrial units, but I am unable to accept the said assertion. No material has been placed before me to show that the doctors employed in the fifth respondent-Corporation are also required to serve the general public other than the employees of the fifth respondent-Corporation. There is also no material placed before me to show that the service conditions the petitioners compel them to treat the patients who are not the employees of the fifth respondent-Corporation. Apart from that, the classification made on the basis of autonomous institutions established by the State under the Karnataka Societies Registration act primarily for the purpose of treating long ailing members of the public and also the doctors employed in the Industrial undertakings established by the State Government, in my view, has to be treated as a reasonable classification. I am inclined to accept the stand of the State Government that the said classification has, been made keeping in mind the doctors who are in service and employed by the State Government and also in the autonomous institutions, are required to cater to the needs of the ailing general public and their quality of service and efficiency is required to be improved in preference to others. When the number of seats in post graduation and Diploma courses are limited and the State is not In a position to provide opportunities to doctors employed in all the undertakings established by it, and in that background if it limits the admission to onfy the doctors working in the autonomous institutions and ESI and who are in Government service, in my considered view, the said classification, as noticed by me earlier, does not suffer from the vice of arbitrariness, or discrimination. It is necessary to point out that the Government Hospitals are established only with the sole object of catering to serve the ailing general public. The position of ESI hospitals is not different. It is necessary to point out that the Government Hospitals are established only with the sole object of catering to serve the ailing general public. The position of ESI hospitals is not different. It is not in dispute that the KIDWAI is established for the purpose of giving specialised treatment to the patients who are suffering from deadly diseases, like cancer, The treatment in the said hospital is not limited to the employees of any particular institution or undertakings as in the case of medical facilities extended by the doctors employed in the fifth respondent - corporation. Similarly, JAYADEVA INSTITUTE OF CARDlology has been established by the State for the purpose of giving specialised treatment to the patients who are suffering from heart ailments. So also the SANJAY GANDHI INSTITUTE OF MEDICAL SCIENCES has been established to give specialised treatment, generally to the patients affected from road accidents and other causes. In all these institutions, the admission and treatment is not limited to any particular section of the society like the medical facilities extended in an industrial unit. If all these aspects are kept in mind by the state, as claimed by it, and on that basis, the classifications are made, in my view, it is not for this court to go into the details of the said classification in arithmetic exactitude to undo the said classification. Though by means of a Rule, classification was made, ultimately it is a policy decision of the State Government which has been incorporated in the form of a Rule. As noticed by me earlier, the State Government, depending upon the priorities for higher education among the doctors employed in the autonomous institutions and in Government service and also the doctors in the industrial undertakings like the fifth respondent, has given preference to the doctors employed. in Government service and in autonomous institutions and are made eligible for admission to post graduate and diploma courses. When the number of seats available for admission for such a standard course is very limited, this Court will not be right in nullifying the said classification merely on the ground that the doctors employed in the fifth respondent-Corporation also could be given the similar benefit. Now, the other question is even if the classification is held to be reasonable, whether it can be said there is no nexus with the object sought to be achieved. Now, the other question is even if the classification is held to be reasonable, whether it can be said there is no nexus with the object sought to be achieved. In my view there is no merit in this submission of the learned Counsel for the petitioners. The classification has been made keeping in mind that the seats in post-graduation and diploma courses are limited in number. The object sought to be achieved is to provide higher qualification to the doctors employed in the institutions referred to above, as they primarily serve the ailing general public. Therefore, when the seats in post graduation and diploma courses are limited and the object of reservation of seats in post graduation course is for in service candidates, as noticed by me earlier, it is not possible to take the view that there is no nexus with the classification made and object sought to be achieved. The right of the petitioners and other doctors to write the examination in respect of the seats thrown out for open competition is not taken away. What has been done is that the petitioners are not given any weightage or treated as in service candidates. The benefit of definition of in-service candidate is not extended under Rule 2 (h) of the Rules to doctors employed in the industrial undertakings like the fifth respondent Therefore, I am of the view that the classification made under Rule 2 (h) of the rules is fair and reasonable and the said Rule 2 (h) or any portion of the said Rule, as claimed by the petitioners, is not liable to be declared as unconstitutional. ( 10 ) IN the light of the above discussion, I am of the view that the decision of the Hon'ble Supreme Court in the case of Deepak Sibal (supra) relied upon by the learned Counsel appearing for the petitioners has no application to the facts of the present case. The facts and circumstances of the present case clearly show that the classification has been made on an intelligible differentia which distingulshes persons and doctors that are grouped together from others left out of the group and the differentia made has a rational nexus with the object sought to be achieved. The facts and circumstances of the present case clearly show that the classification has been made on an intelligible differentia which distingulshes persons and doctors that are grouped together from others left out of the group and the differentia made has a rational nexus with the object sought to be achieved. The question that came up for consideration in the case of Deepak Sibal (supra) was whether the admission to an evening Law College could be restricted only to employees of the Government/semi Government Institutions and the employees of other private institutions could be excluded. In that background, the Supreme Court took the view that the classification of the employees made on the basis of the employees of the government/semi-Government institutions and employee of other institutions is unreasonable and arbitrary. The admission in the said case was in respect of Evening Law Colleges. In that background, the Hon'ble Supreme Court struck down the Rule which limited admission for study f III year LLB Degree course in the Evening law Colleges as discriminatory and violative of Article 14 of the constitution. In my view, the facts of that case are quite different from the one on-hand. ( 11 ) IN the light of the discussion made above, these petitionsare liable to be rejected. Accordingly, they are rejected. However. no order is made as to costs. ( 12 ) SRI K. Vishwanath, learned Addl. Government Advocate is given four weeks time to file his memo of appearance. --- *** --- .