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Madhya Pradesh High Court · body

2009 DIGILAW 55 (MP)

KALURAM KHANDE v. STATE OF M P

2009-01-12

DIPAK MISRA, K.S.CHAUHAN

body2009
Judgment ( 1. ) INVOKING the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India the petitioner has prayed for declaring Rule 17 (5)of the Medical and Dental Post-Graduate Entrance Test Rules, 2005 (hereinafter referred to as the Rules) as ultra vires Article 14 of the Constitution of India and to command the respondents to grant him admission as a student of M. D. S in government College, Indore for the academic session 2005-06. ( 2. ) THE facts which are imperative to be stated are that the petitioner, is an assistant Professor in the Department of Dentistry in Gajara Raja Medical College (Autonomous Society), Gwalior. The Government College of Dentistry at Indore runs bachelor course in dental surgery and master degree in dental surgery. In the year 2005 there were three seats in dental surgery. Three seats for master degree in dental. surgery were allocated to Orthodontics (unreserved), prosthodontics (All India Quota) and Prosthodontics (reserved for ST candidate ). It is contended that the seat reserved for orthodontics was meant for unreserved category and it was intended for Assistant Professor, Government College, Indore though it should have been made available to every person in Government service in the State of M. P. who is working as Assistant Professor in Dental Surgery. As there was no Assistant Professor available in Government Dental College, indore for admission the seat was given away to non-service open candidates on the basis of merit. It is put forth that the petitioner should have been considered for admission to the said seat in preference to non-service (Open) candidates for whom there was several seats. It is urged that Rule 17 (5) of the Rules which provides to the effect that the seat is reserved for Assistant Professor, Government dental College, Indore, with the stipulation that if the eligible candidate is not available the seat will be allotted to eligible non-service (open) candidate strictly on merit- cum- option basis is discriminatory and arbitrary. It is urged that Rule 17 (5) of the Rules which provides to the effect that the seat is reserved for Assistant Professor, Government dental College, Indore, with the stipulation that if the eligible candidate is not available the seat will be allotted to eligible non-service (open) candidate strictly on merit- cum- option basis is discriminatory and arbitrary. It is contended that there cannot be reservation for a singular college and should have been open for all the Assistant Professor working in the Medical Colleges in State of M. P. It is also urged that if a candidate of the said medical college is not available then other Assistant Professors of the Colleges should be considered irrespective of their category does not save it from the vice of Article 14 of the Constitution. In this backdrop prayer has been made as has been indicated hereinabove. ( 3. ) A counter affidavit has been filed by the answering respondents contending, inter alia, that the College of Dentistry at Indore is the only college which imparts education for Post Graduate degree in Dentistry and rest of the colleges which impart education in Dentistry are private colleges. It is the stand in the return that the rule has carved out reservation for Assistant Professor of Government College, indore only because it has got some rational nexus and a purpose to achieve inasmuch as it is the only dental college that imparts education in Post Graduation course and it is necessary to see that maximum Professors imparting education are Post Graduates so that the students studying there in BDS course can get the advantage of teaching by the Postgraduate teachers. It is averred that the candidates who desire to pursue their study are required to fill a bond to the effect that after completing the course they will serve the Government Dental College, indore for a minimum period of two years. It is set forth that the Rule gives that if in-service candidates are not available then the seat will be filled up by the general category candidate and this is the only seat available for general category candidate and the selection would be made on merit -cum- option basis. It is set forth that the Rule gives that if in-service candidates are not available then the seat will be filled up by the general category candidate and this is the only seat available for general category candidate and the selection would be made on merit -cum- option basis. It is highlighted that the Dental Council of India has required the Government Dental college, Indore to fulfill the deficiencies and one of the deficiencies is that deficiency of five readers in the department of Prosthodntics, Conservative Dentistry, Oral and Maxillofacial Surgery, Periodontics and Orthodontics and to fulfill the said deficiency the respondents. have been made restricted to Assistant Professor in government Dental College, Indore. The same has been done to save the college from being de-recognized by the Dental Council of India. The further stand in the return is that in the concerned college there are nine Lecturers working who have only done B. D. S. and are serving as Assistant professor and hence, the Department has no option but to take service of these teachers because the Postgraduate teachers are not available and it is incumbent on the part of the Government to equip the College with the Postgraduate teachers. It is urged that the said provision has been mad so that the education in Postgraduate courses can be imparted properly and students get benefitted. ( 4. ) A rejoinder has been filed stating, inter alia, that the inspection report while pointing out the deficiencies had shown that all nine lecturers are on contract basis. It is put forth that once they are on contract basis, they are not entitled to be given the benefit of admission in the post graduate subject as an In-service candidate as per rule 15 (4) and in this background reservation for such a college is totally uncalled for. It is urged that no distinction can be made between the petitioner who is also an In-service candidate in the State of M. P. and an Assistant professor serving in Government College of Dentistry, Indore. A reference has been made to Rules of 2002 to show that there was no such reservation. Various other aspects have been highlighted in the rejoinder affidavit indicating that no financial burden would be incurred on the State if the petitioner is admitted in the mds course. ( 5. A reference has been made to Rules of 2002 to show that there was no such reservation. Various other aspects have been highlighted in the rejoinder affidavit indicating that no financial burden would be incurred on the State if the petitioner is admitted in the mds course. ( 5. ) AN application for taking subsequent events and documents on record has been filed by the respondents. In the said application it is averred that in the year 2006 a new set of Rules, namely, Medical and Dental Post Graduate Entrance test Rules, 2006 has come into existence and sub-rule (5) of Rule 17 which provided for reservation for Assistant Professor for Government College of Dentistry, Indore has been done away with. ( 6. ) WE have heard Mr. Rajendra Tiwari, learned senior counsel along with Mr. T. K. Khadka for the petitioner and Mr. Kumaresh Pathak, learned Deputy advocate General for the State. ( 7. ) IT is submitted by Mr. Tiwari, learned senior counsel appearing for the petitioner that the rule in question offends the basic tenet of Article 14 of the constitution as a discrimination has been created without any base or foundation. The restriction of consideration limiting to the Government College of Dentistry at indore fall foul of equality clause. It is his further submission that the justification given in the counter affidavit that there is no other Government College in the state and the said reservation has been made to meet out the deficiencies pointed out by the Dental Council of India, does not meet the concept of reasonable classification which is consonant with the guarantee of equal protection as inherent under Article 14 of the Constitution. Learned senior counsel has proponed that edifice of intelligible differentia as projected by the respondents has no rational relationship to the object sought to be achieved by the Rule in question and in the absence of any nexus between the classification and the object sought to be achieved, the Rule is violative of Article 14. ( 8. ) MR. Learned senior counsel has proponed that edifice of intelligible differentia as projected by the respondents has no rational relationship to the object sought to be achieved by the Rule in question and in the absence of any nexus between the classification and the object sought to be achieved, the Rule is violative of Article 14. ( 8. ) MR. Kumaresh Pathak, learned Deputy Advocate General for the State justifying the Rule has submitted that the State Government has framed the Rule with the object of fulfilling the deficiency pointed out by the Dental Council of india in Government College of Dentistry, Indore as it is the sacrosanct duty of the State Government to meet the deficiency to avoid the catastrophe like derecognition. Learned Deputy Advocate General for the State has further urged that the policy underlying the Rule has an object to achieve and if the said policy is kept in view the duel test which is required to be examined the validity of the rule is met with. It is canvassed by him that classification meets the test of reasonableness if the existing circumstances at the relevant point of time are appreciated with studied scrutiny. The base of classification, submits Mr. Pathak, is manifestly perceptible as Assistant Professor serving in a Government College stands on a different footing and belongs to a particular class than the Assistant professor serving in a private college. It is further propounded by him that the provision under attack also protects the interest of all the candidates as in case of non-availability of Assistant Professor in Government College thus, the preference does not suffer from incurable rigidity. It is highlighted by him that the classification cannot be said to be wholly irrelevant to the object sought to be achieved and but the other hand it is relevant and justified, and in a way necessary. ( 9. ) TO appreciate the rivalised submissions raised at the Bar it is relevant to refer to certain rules which have been emphaised upon. Rule 8 deals with reservation and sub-rule (4) of the said Rule which deals with reservation for In-service candidates reads as under: "8. ( 9. ) TO appreciate the rivalised submissions raised at the Bar it is relevant to refer to certain rules which have been emphaised upon. Rule 8 deals with reservation and sub-rule (4) of the said Rule which deals with reservation for In-service candidates reads as under: "8. (4) In PG Degree and Diploma Courses 20% of seats are reserved for In-service Medical officers (In-service candidate - Table No. 3 and 4) For these In-service candidates, selection process and conditions for degree and diploma courses will be as under: selection Criteria: - (a) Only those candidates, who have completed 5 years of service on 1st January of year of examination as Medical officer under the Government of Madhya Pradesh and who are not serving on contractual basis will be eligible for selection as In-service candidates. If a candidate was working on contractual basis in Public Health and Family Welfare department of the State Government and has come in regular services while working on contractual basis, then experience of contract service will also be considered. (b) Women candidates, who have served for three consecutive year in rural areas and who are not serving on contractual basis will also be eligible, even if they have not completed a total of five years of service. Relaxation for such woman candidate 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 gynecology and Anesthesia only. If a woman candidate was working on contractual basis in Public Health and Family welfare Department of the State Government and has come in regular services while working on contractual basis, then experience of contract service will also be considered," ( 10. ) RULE 12 which deals with fee, bond etc is as follows: "12. Fee, Bond etc :-Each candidate will have to obey the entrance examination rules of the Professional Examination Board, and will have to deposit prescribed examination fees. Selected candidates have to execute a bond for serving under the State government for at least 5 years after completing PG degree/ diploma course. " ( 11. ) RULE 15 deals with eligibility. Rule 17 deals with admission to PG Dental degree Courses. Sub-rule (5) of the said Rule relates with the seats available. It reads as under: 17. Selected candidates have to execute a bond for serving under the State government for at least 5 years after completing PG degree/ diploma course. " ( 11. ) RULE 15 deals with eligibility. Rule 17 deals with admission to PG Dental degree Courses. Sub-rule (5) of the said Rule relates with the seats available. It reads as under: 17. ADMISSION TO PG DENTAL DEGREE courses:- (5) Seats Available At autonomous Dental College for mds course, following seats are available:-Orthodontics - Un-Reserved category - One - This seat is reserved for Assistant Professor, Government Dental college, Indore, however if eligible candidate is not available, the seat will be allotted to eligible non service (open) candidate strictly on merit cum option basis. Prosthodontics - One. All India quota prosthodontics - Reserved category - One - This seat is reserved for scheduled tribe category candidate, in case eligible candidate is not available then the seat will be filled up as described in sub-rule (11) of rule 20. " ( 12. ) RULE 20 deals with counselling and Rule 21 deals with admission. ( 13. ) THE centroidal issue that requires to be dwelled upon is whether the reservation as engrafted under Rule 17 (5) pertaining to the stream, namely, orthodontics, invites the frown of the equality clause. The said seat, as is evincible, is reserved for Assistant Professor, Government College of Dentistry, Indore. It is categorically asseverated in the return that there is singular Government Dental college in the entire State of M. P. It is highlighted that the college had certain deficiencies with regard to teaching faculty and hence, the said provision was incorporated to fill up the posts from the Assistant Professors in MDS (Orthodontics ). It is not in dispute the petitioner is an Assistant Professor in G. R. Medical College, Gwalior which is not a Government College. Submission of Mr. Tiwari, in essentiality, is that by the classification a discrimination has been created between the Government Dental College and other colleges. It is also urged by him that in the matter of public employment all citizens must be given equal opportunity and it cannot be monopolized by a particular class. ( 14. ) IN this context, we may refer with profit to the decision rendered in S. P. Mittal v. Union of India and Others, AIR 1983 SC 1 . It is also urged by him that in the matter of public employment all citizens must be given equal opportunity and it cannot be monopolized by a particular class. ( 14. ) IN this context, we may refer with profit to the decision rendered in S. P. Mittal v. Union of India and Others, AIR 1983 SC 1 . In the said case the apex Court has held as under: "165. The argument cannot be accepted for two reasons. Firstly, because it has not been pointed out which were the other institutions where similar situations were prevailing. Besides, there is a uniqueness with this institution inasmuch as the Government is also involved. Even a single institution may be taken as a class. The situation prevailing in the Auroville had converted the dream of the Mother into a nightmare. There had arisen acute law and order situation in the Auroville, numerous cases were pending against various foreigners, the funds meant for the Auroville had been diverted towards other purposes and the atmosphere was getting out of hand. In the circumstances the Government intervened and promulgated the Ordiance and later on substituted it by the impugned enactment. It cannot be said that it is violative of art. 14 on that account. We get support for our view from the following decisions. 166. In Budhan Chowdhury v. State of Bihar, (1955) 1 scr 1045 : ( AIR 1955 SC 191 ) a Constitution Bench of seven judges of this Court explained the true meaning and scope of article 14 as follows (at p. 193 of AIR): "it is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differential must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. The classification may be founded on different bases, namely, geographical, or according to objects or occupation or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Art. 14 condemns discrimination not only by a substative law but also by a law of procedure. " these observations were quoted with approval by this court in Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, 1959 SCR 279 : ( AIR 1958 SC 538 ). In this case the Court further laid down, " (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individual or corporations to hostile or discriminating legislation. " ( 15. " ( 15. ) IN this regard we may fruitfully refer to the decision in J. C. Yadav v. State of Haryana, AIR 1990 SC 857 wherein the Apex Court was considering the power of relaxation clause in service law. In that context their Lordships opined that the power of relaxation even if generally included in the service rules could either be for the purpose of mitigating hardships or to meet special and deserving situations. We have referred to the said decision only to show that special circumstances can be thought of to meet out a situation and in that event the concept of arbitrariness or non-consideration inviting the wrath of Article 14 of the Constitution would not be attracted. ( 16. ) IN Kshetriya Kisan Gramin Bank v. D. B. Sharma and Others, AIR 2001 sc 168 it has been held as follows: ". . . . . It is too well settled that even a single institution can form a class by itself and while deciding the question of violation of Article 14 what is required to be found out is whether there are any reasonable basis on which a simple person or group of persons are left out of the group and whether there is any rational relation for such differentiation with the object sought to be achieved. In other words, what is necessary is that there must be nexus between the basis of classification and the object of such classification. . . . . " ( 17. ) IN this regard, we may usefully to a two Judge Bench decision in Dharam dutt and Others v. Union of India and Others, AIR 2004 SC 1295 wherein it has been held as follows: ". . . . . A single institution is capable of being treated as a class by itself for the purpose of legislation if there are special circumstances or reasons which are applicable to that institution and such legislation would not incur the wrath of art. 14. In S. P. Mittal (supra), the impugned legislation brought with the object and purpose of taking away the management of Auroville from the Aurobindo Society and to bring it under the management of the Central Government under the provisions of the impugned Act was held to be valid. 14. In S. P. Mittal (supra), the impugned legislation brought with the object and purpose of taking away the management of Auroville from the Aurobindo Society and to bring it under the management of the Central Government under the provisions of the impugned Act was held to be valid. The exercise of legislative power by Parliament was sought of be justified as falling within the field of Entry 63 of List I. Their Lordships referred to several decisions wherein the constitutional validity of similar legislation was upheld. In ram Krishna Dalmia v. Justice S. R. Tendolkar, 1959 SCR 279 , legislation relating to a single individual in Raja Birakishore v. State of Orissa (1964) 7 SCR 32 , legislation in respect of a single temple and in Chiranjit Lal Chowdhuri v. Union of india 1950 SCR 869 , a separate law enacted for one company were held not to offend Art. 14 of the Constitution on the ground that there were special reasons for passing such legislation. " ( 18. ) IN Shashikant Laxman Kale and another v. Union of India and another, air 1990 SC 2114 , the Apex Court has upheld the classification between the public sector employees and private sector employees. ( 19. ) IN Pallavi Refractories and others v. Singareni Collieries Co. Ltd. and others, (2005) 2 SCC 227 , the Apex Court upheld the dual fixation of price based on reasonable classification different types of customers to be valid. Be it noted, in the said case, the Government of India had identified seven core/priority sector industries and challenge was made by the non-core/unlinked sector industries. ( 20. ) IN Government of Andhra Pradesh and another v. G. Jaya Prasad Rao and Others, (2007) II SCC 528 while dealing with the scheme of accelerated promotion for the persons in extremist operation, their Lordships held that the classification withstands Article 14 of the Constitution and the said classification is valid in law. ( 21. ) IN this context, we may refer to the decision in Municipal Committee, patiala v. Model Twon Residents Assocn. and Others, AIR 2007 SC 2844 wherein it has been held as under: "the central test for permissible classification has to satisfy two conditions. ( 21. ) IN this context, we may refer to the decision in Municipal Committee, patiala v. Model Twon Residents Assocn. and Others, AIR 2007 SC 2844 wherein it has been held as under: "the central test for permissible classification has to satisfy two conditions. It must be founded on an intelligible differentia which distinguishes persons or premises that are grouped together from others left out of the groups and the differential must have a rational relation to the object sought to be achieved by the Act in question. A law based on a permissible classification fulfills the guarantee of the equal protection of the laws and is valid whereas a law based on an impermissible classification violates the guarantee and is void. Equality is violated by treating persons similarly situated differently. If a law deals equally with members of a well defined class, it is not open to challenge such a law on the ground of denial of equal protection. In order to sustain the presumption of constitutionality, the Court can take into consideration matters of common knowledge and, at the same time, the Court must presume that the Legislature understands and correctly appreciates the need of its own people. " ( 22. ) IN the instant case, as is patent, a classification has been made between a government college and other colleges. Such a classification is indubitably permissible. A private college cannot be equated with the Government college. The seat in Orthodontics was meant for unreserved category, as is manifest, is reserved for an Assistant Professor serving in Government College. An explanation has been given that the college was facing a problem of de-recognition by the Dental Council of India. As putforth, keeping in view the same, the said rule was introduced. It is also worth noting that the said Rule is not in absolute terms. It postulates that if eligible candidate is not available the said seat would be allotted to non-service (open) candidate strictly on merit-cum-option basis. Rule 2 (d) which defines in-service medical officer to mean such doctor who is serving under the Government of Madhya Pradesh and not serving on contract basis. Thus, if the dictionary clause is properly understood, the petitioner cannot be treated as in-service candidate to claim parity with an in-service medical officer. However, when the seat is thrown open he is not debarred to appear. Thus, if the dictionary clause is properly understood, the petitioner cannot be treated as in-service candidate to claim parity with an in-service medical officer. However, when the seat is thrown open he is not debarred to appear. He cannot claim a better privilege than a non-service (open) candidate. That apart the rule can also be constructed from another angle. Though term reserved has been used, as has been stated earlier, it is not in absolute term. It is in a way preference. Additionally it is worth noting that the said Rule has been withdrawn as the documents brought on record would show, on subsequent year. Thus, it was meant to meet out a particular special circumstance. ( 23. ) JUDGED from all these angles, we are of the considered opinion that the Rule does not offend Article 14 of the Constitution of India. The inevitable result of such analysis is dismissal of the writ petition which we direct. There shall be no order as to costs. Petition dismissed.