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Madhya Pradesh High Court · body

2008 DIGILAW 669 (MP)

Jyoti Markam v. State of M. P.

2008-05-08

DIPAK MISRA, S.A.NAQVI

body2008
Judgement DIPAK MISRA, J. :- By this writ petition the petitioner has challenged the constitutional validity of the Rules 1.8 and 1.20(9) of M. P. Medical and Dental Post Graduate Course Entrance Examination Rules, 2008 (in short 'the Rules'). 2. As far as the Rule 1.8 is concerned this Court in Animesh Gupta v. State of M. P. and others (W. P. No. 3795/2008 and other connected matters) has held as under : "10. First we shall deal with the validity of the Rule 1.8. The said Rule reads as under : "1.8 Reservation : 1.8 (2) The minimum percentage of marks in Pre P. G. Entrance Examination for eligibility for admission to Post Graduate Medical and Dental Courses shall be 40% for SC/ ST/OBC candidates and 50% for Unreserved category candidates. While preparing the merit list of Non-Service candidates for Medical (MD and MS) Course, the Board shall calculate 50% pro rata of the total marks obtained in MBBS Part-I and Part II and add it to the marks obtained in Pre-PG Entrance examination. Note : The merit list of Non-Service candidates for Medical (MD and MS) course shall be prepared through pro rata rule. Non-Service candidate's applying for Medical MD and MS course shall have to mention their MBBS final Professional Part-I and Part-II marks along with the maximum marks in the OMR Application Form. The marks obtained in Part I and Part II will be added and the percentage with the total maximum marks of Part-I and Part-II will be calculated. 50% of the percentage of marks so calculated will be then added to the marks obtained in the test. Thereafter the merit list will be prepared by the Board. The pro rata rule will not be applicable to In-Service and Candidates applying for MDS course. For such candidates, only the marks obtained in the Pre-PG entrance examination shall be taken into account. The maximum marks for different courses will be as follows : Sr. No. Candidate/Course Maximum Marks 1. Non-service (MD and MS) 200 - Written Test 50 - Marks obtained through Pro rata Rule 250 250 3. Non-Service (MDS) 200 - Written Test 200 2. In-service (MD and MS and MDS) 200 - Written Test 50 - marks obtained for Rural / Tribal Service 11. It is not disputed that there are more than one university in the State of Madhya Pradesh. Non-Service (MDS) 200 - Written Test 200 2. In-service (MD and MS and MDS) 200 - Written Test 50 - marks obtained for Rural / Tribal Service 11. It is not disputed that there are more than one university in the State of Madhya Pradesh. In State of M. P. and others v. Gopal D. Tirthani and others, AIR 2003 SCW 3636 it has been held as under : "38. In the examination held in the year 2003, in the category of in-service candidates, 36 have qualified. They have taken the common entrance test along with open category candidates and they have also secured the minimum qualifying marks as prescribed by MCI Regulations. In the quota of in-service candidates, 53 seats still remain vacant. It was stated at the Bar that there are many who could not apply because of the confusion that was prevailing on account of pendency of writ petitions in the High Court and declaration of results of the entrance examination having been stayed by the interim order of the High Court passed in the previous batch of writ petitions. Even the State Government was in a state of fix and did not process the sponsorship applications of in-service candidates. Those 108 in-service candidates, who had applied for participation in Pre-PG Test 2003, did so without sponsorship and the High Court has directed admission being allowed to 36 successful in-service candidates by processing their sponsorship ex post facto. Suitable directions need to be given to take care of interest of in-service candidates qua Pre-PG Test 2003." 12. In view of the aforesaid enunciation of law we have no shadow of doubt that Rule 1.8(2) which provides for preparation of merit list of non-service candidates for Medical (MD and MS) course calculating 50% pro rata of the total marks obtained in MBBS Part I and Part II and adding it to the Marks obtained in the Pre-PG Entrance examination, is impermissible, being counter to the law laid down in the case of Gopal D. Tirthani (supra) and, therefore, it is declared as ultra vires. 13. The next aspect which we shall advert to the grant of weightage for rural posting to the in-service candidates which finds place in Rules 1.9 and 1.10. 13. The next aspect which we shall advert to the grant of weightage for rural posting to the in-service candidates which finds place in Rules 1.9 and 1.10. The said Rules read as under : " 1.9 Selection Criteria :- (In Service Candidate) 1.9.1 (b) All those candidates, who have served for three consecutive years in rural areas on regular or contractual basis will also be eligible, even if they have not completed a total of five years of service. Relaxation for such candidates with less than 5 years of service will, however be subject to condition that they will be entitled for selection to Post Graduate Courses in Obstetrics and Gynaecology/Paediatrics/Anaesthesia/ Pathology/Radiotherapy/Radiodiagnosis only." 1.10 Examination and Merit list :- There will be one common entrance examination for Post Graduate Entrance conducted by Madhya Pradesh Professional Examination Board. The In-service candidates will be selected on the basis of the same entrance examination. The In-service candidates shall have to secure minimum qualifying marks in the Pre-PG Entrance Examination, as prescribed in the rules for admission. The Madhya Pradesh Professional Examination Board will prepare and declare separate merit list of selected In-service candidates. Total Marks for the examination for In-service candidates shall be 200. Such In-service candidates, declared successful will be considered for final Merit list by addition of marks calculated on the following basis. The inter-se merit of the selected In-Service candidates shall be prepared by adding marks based on weightage for their services rendered in rural areas. The candidates serving in rural area will get a maximum of 50 marks, allotted on the following basis :- (a) For Government service of one year duration while posted in rural area, a weightage of maximum 06 marks will be given. For the service in rural area, the maximum gain of marks will be 30 or 20 as per following marks for one year each, for five years. If the regular services are rendered in Primary Health Centre or Community Health Centre situated in rural area, then 06 marks will be given for one year and if regular services are rendered in Primary Health Centre or Community Health Centre in Nagar Panchayat Area, which has been formed under the "M. P. Municipalities Act, 1961" then 04 marks will be given for one year's service. (b) For every year of regular service, additional marks will be given, if the rural area comes under tribal sub plan and if such services are rendered in Primary Health Centre the candidate will get maximum 20 additional marks at the rate of 04 additional marks as per year for five years and for rendering such regular services at Community Health Centre, in a tribal sub plan area the candidate will get total additional 10 marks at the rate of 02 marks per year for five years. (c) For the purpose of this Rule, during the period of service of candidate while posted in rural area or Nagar Panchayat area or tribal area, if he/she was on unauthorized absence from duty/any dies-non period/any period of leave without pay/any period on training exceeding 3 months/attachment in urban area during the tenure of rural service it will not be counted for the purpose of calculation of marks for weightage for rural service. (d) The final merit list of In-service candidates will be prepared by Madhya Pradesh Professional Examination Board for counselling on the basis of marks obtained in entrance examination (equivalent to 200 marks) and marks secured for weightage of Rural/Tribal Area Service (equivalent to maximum 50 marks) out of a total of 250 marks. (e) In case of two or more candidates obtaining equal marks, the inter-se-merit will be decided as per procedure described in sub rule (2) of Rule 19. (f) The counselling of In-service candidates will be done by the Medical Education Department." 14. The aforesaid controversy would not detain us inasmuch as in Gopal D. Tirthani (supra) it has been held in categorical terms that it is permissible to assign a reasonable weightage for services rendered in rural/ tribal areas by in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the Pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India because it does not tantamount to a case of reservation but only assignment weightage to the service rendered in rural or tribal areas. It has been held by the Apex Court that the same does not affect the candidates in the open category and not oppugnant to the MCI Regulations. 15. It has been held by the Apex Court that the same does not affect the candidates in the open category and not oppugnant to the MCI Regulations. 15. Be it noted that in the said case their Lordships have opined that the State Government should take care to see that the weightage is reasonable and worked out on a rational basis. If the Rule 1.10 is scrutinised in a studied manner it provides that the candidate serving in rural or tribal area would get a maximum of 50% marks on the basis provided therein. There is adequate safeguard and the method of computation is dependent on the period of service and the area oriented. Thus, the foundation is absolutely rational. That apart, the merit list is prepared amongst the in-service candidates. An addition of marks regard being had to the services rendered, the same is, we are disposed to think, is in accord with the decision in Gopal D. Tirthani (supra) and does not suffer from the vice of irrationality or arbitrariness. Hence, we are inclined to hold that the same does not invite the wrath or frown of Article 14 of the Constitution of India." 3. In view of the aforesaid the said Rule is declared as ultra vires. 4. Presently, we shall advert to the Rule 1.20(9). The said Rule deals with the sequence in which the counselling is to be done in respect of in-service candidates. The said Rule reads as under : "1.20 Counselling : (9) Counselling of In-service candidates will be done first and category wise in the following sequence. I. IN-SERVICE A. ST Category B. SC Category C. OBC Category D. Unreserved Category. In case eligible In-service candidates to the extent of reservation in any category are not available, the vacant seats of that category will be filled up by making available to other In Service Categories as given below :- (a) The vacant seats of ST category shall be filled up by the eligible SC category candidates. (b) The vacant seats of SC category shall be filled up by the eligible ST category candidates. (c) In case the eligible candidate's to the extent of reservation in ST and SC categories are not available, the vacant seats shall be filled up by eligible OBC category candidates. (b) The vacant seats of SC category shall be filled up by the eligible ST category candidates. (c) In case the eligible candidate's to the extent of reservation in ST and SC categories are not available, the vacant seats shall be filled up by eligible OBC category candidates. (d) In case the eligible candidates are not available in these three reserved categories in the above manner, the vacant seats shall then be filled up by eligible unreserved category candidates." 5. Submission of Mr. Aditya Sanghi is that if the said sequence is followed in the ultimate eventuate there would be disturbance in the reservation which is impermissible and would also run counter to the Rule 1.8 which deals with the reservation. To appreciate the said submission we think it apposite to reproduce relevant portion of Rule 1.8. It reads as under : "1.8 Reservation - 20% seats are reserved for candidates belonging to Scheduled Tribe, 16% seats are reserved for candidates belonging to Scheduled Caste and 14% seats are reserved for candidates belonging to Other Backward Classes other than the creamy layer of OBC of Madhya Pradesh or as amended from time to time." 6. On a bare perusal of the aforesaid Rule it is clear as crystal that percentage of reservation is provided to the candidates belonging to the ST, SC and OBCs categories. The creamy layer of Madhya Pradesh has been excluded. The submission of the learned counsel for the petitioners is that if the sequence as enumerated after mentioning of the categories is followed that would unsettle the reservation. Emphasis is laid down by the learned counsel for the petitioners on the term 'any category'. It is urged that if in case eligible inservice candidates of a particular category are not available the vacant seats of that category would be filled up by making available to in-service candidates of other category. Quintessentially if the ST category is not available that can go to other in-service categories as per the sequence enumerated therein. In this regard, learned counsel for the petitioners have invited our attention to the decision rendered in Dr. Quintessentially if the ST category is not available that can go to other in-service categories as per the sequence enumerated therein. In this regard, learned counsel for the petitioners have invited our attention to the decision rendered in Dr. Arvind Bhatia v. State of M. P., 2007 (ILR) 921 wherein the earlier Rule 20(9) was interpreted; and the Division Bench expressed the opinion as under : "The last limb of Rule 20(9) of the Rules provides that the seats remaining vacant after category wise counselling will be made available unchanged to the open category (non-service) candidate of same category. Such a provision has been made to ensure that the provision in Rule 8 of the Rules that 20% seats are reserved for candidates belonging to ST, 16% seats are reserved for candidates belonging to SC and 14% seats are reserved for candidates belonging to OBCs, is not affected. In case, as suggested by Mr. Mishra, seats remaining, vacant after category wise counselling is made available to un-reserved in service candidates, then seats which were reserved for ST, SC and OBCs would be filled up by in-service unreserved candidates and the consequence would be that the reservation of 20%, 16% and 14% of the total seats for ST, SC and OBC candidates respectively would be affected. Rule 20(11) provides for counselling for open (non-service) candidates. If candidates are not available from amongst ST, SC and OBC categories, obviously the seats have to be filled up from open unreserved category. In such an event, the percentage of reservation for ST, SC and OBC categories is affected because of non-availability of candidates of ST, SC and OBC categories and not by a provision in the Rules. Obviously, if in the counselling for open categories, after the counselling for in-service candidates, ST, SC and OBC category candidates are not available for remaining seats reserved for ST, SC and OBC categories, such seats cannot go waste and will have to be filled up from open unreserved category candidates. We, therefore, do not find that the provision in Rule 20(9) of the Rules, insofar as it is different from Rule 20(11) of the Rules is discriminatory and violative of Article 14 of the Constitution of India." 7. It is urged that as the rule has been changed the concept of reservation would be affected. We, therefore, do not find that the provision in Rule 20(9) of the Rules, insofar as it is different from Rule 20(11) of the Rules is discriminatory and violative of Article 14 of the Constitution of India." 7. It is urged that as the rule has been changed the concept of reservation would be affected. It is submitted that earlier rule was different than the present one inasmuch as the earlier rule did not affect the reservation but the present one is likely to affect the reservation. On a first flush it may appear that it is an innocuous arrangement but on a deeper probe and keener scrutiny it would be revealed that there is possibility as a consequence of which reservation facet may be disturbed. 8. It is well settled principle of law that efforts are to be made to uphold the constitutional validity of any statutory provision or Regulation or Rules unless no option is left to the Court. In the case at hand it is to be seen whether both the Rules can harmoniously co-exist or not. 9. In this context we may refer with profit to the decision in Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 . Their Lordships have so observed : "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction." 10. In Madanlal Fakirchand Dudhediya v. Shri Changdeo Sugar Mills Ltd. and others, AIR 1962 SC 1543 it has been held that an attempt should be made to construe the provisions to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. 11. In Krishan Kumar v. State of Rajasthan and others, AIR 1992 SC 1789 it has been held as under : "11. it is settled principle of interpretation that where there appears to be inconsistency in two sections of the same Act, the principles of harmonious construction should be followed in avoiding a head on clash. It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other. it is settled principle of interpretation that where there appears to be inconsistency in two sections of the same Act, the principles of harmonious construction should be followed in avoiding a head on clash. It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other. The provisions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same." 12. In M/s. Sultana Begum v. Prem Chand Jain, AIR 1997 SC 1006 the Apex Court laid down the following principles : "(1) It is the duty of the Courts to avoid a head on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them. (2) The provisions of one section of a statute cannot be used to defeat the other provisions unless the Court, in spite of its efforts, finds it impossible to effect reconciliation between them. (3) It has to be borne in mind by all the Courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction". (4) The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction. (5) To harmonise is not to destroy any statutory provision or to render it otiose." 13. In Jagdish Singh v. Lt. Governor Delhi and others, AIR 1997 SC 2239 a two-Judge Bench of the Apex Court has held as under : "7.......It is a cardinal principle of construction of a statute or the statutory rule that efforts should be made in construing the different provisions, so that, each provision will have its play and in the event of any conflict a harmonious construction should be given. Further a statute or a rule made thereunder should be read as a whole and one provision should be construed with reference to the other provision so as to make the rule consistent and any construction which would bring any inconsistency or repugnancy between one provision and the other should be avoided. Further a statute or a rule made thereunder should be read as a whole and one provision should be construed with reference to the other provision so as to make the rule consistent and any construction which would bring any inconsistency or repugnancy between one provision and the other should be avoided. One rule cannot be used to defeat another rule in the same rules unless it is impossible to effect harmonisation between them. The well-known principle of harmonious construction is that effect should be given to all the provisions, and therefore, this Court has held in several cases that a construction that reduces one of the provisions to a 'dead letter' is not a harmonious construction as one part is being destroyed and consequently Court should avoid such a construction." 14. M/s. British Airways Plc. v. Union of India and others, AIR 2002 SC 391 wherein the Apex Court has expressed the view as under : "7. While interpreting a statute the Court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be achieved by the enactment. The Court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its working impossible. It is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well-known principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the Court to make such construction of a statute which shall suppress the mischief and advance the remedy. While interpreting a statute the Courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation." 15. Rule 1.8 deals with the reservation and fixes upper ceiling of SC, ST and OBCs categories. The said upper ceiling cannot be allowed to be disturbed but the same should be read harmoniously with Rule 1.20(9). While interpreting a statute the Courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation." 15. Rule 1.8 deals with the reservation and fixes upper ceiling of SC, ST and OBCs categories. The said upper ceiling cannot be allowed to be disturbed but the same should be read harmoniously with Rule 1.20(9). Rule 1.20(9) basically provides for sequence and reservation in any category to be filled up by another reserved category. The same may not be inherently in the impermissible realm but it has to adhere to the concept as enshrined under Rule 1.8. To elaborate even if the sequence is followed and the categories are allowed to change as provided under the Rule 1.20(9) the same would not be allowed to exceed the upper ceiling limit as postulated in Rule 1.8. Be it placed on record that the controversy can be looked from another spectrum. The term 'any category' has to be read in the context of seriatim mentioned in Rule 9. Clause D fixes unreserved category by following the procedure. Number of seats filled up by the reserved categories cannot exceed 50%. That would run counter to the law laid down by the Apex Court in Indra Sawhney v. Union of India, AIR 1993 SC 477 . 16. Regard being had to both the concepts and sequences provided in Rule 1.20(9) it should be read with 1.8 and even if the sequence is allowed to operate it should be as per Rule 1.8. So stating we hold the said rule to be intra-vires. 17. In view of the aforesaid premises as conclude and hold as under : (i) Rule 1.8(2) is ultra vires being violative of Post Graduate Medical Education Regulations, 2000 and further as it runs counter to the decision render in Gopal D. Tirthani (supra). (ii) Rule 1.20(9) is treated to be intra vires as has been held in terms of paragraph 16. (iv) The counselling shall be conducted as the law declared in these writ petition as well as in Writ Petition No. 3795/2008 and also keeping in view the principles laid down in Dr. Arvind Bhatiya (supra). 18. The writ petition is disposed of on above terms. There shall be no order as to costs. Order accordingly.