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Madhya Pradesh High Court · body

2009 DIGILAW 571 (MP)

Shailu Mangal v. State of M. P.

2009-04-29

A.K.PATNAIK, AJIT SINGH

body2009
ORDER Patnaik, C.J. --1. This case relates to admission to the seats allocated for in-service candidates in the medical post-graduate courses in the Medical Colleges under the Government of Madhya Pradesh. 2. In exercise of powers conferred by section 10 of the Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973, the State Government has made the rules relating to admission to Post-Graduate Medical (MD and MS) courses and Post-Graduate Diploma and Dental (MDS) courses in the Medical and Dental Colleges in the State of Madhya Pradesh, under the State Government called the Madhya Pradesh Medical and Dental Post-Graduate Course Entrance Examination Rules, 2008 (for short "the Rules, 2008"). In the Rules, 2008, 20% of the total seats in Post-Graduate Medical Degree and Diploma Courses have been allocated for in-service candidates and for these seats only in-service candidates could apply and on the basis of their position in merit list separately prepared in-service candidates were to be called for counselling and given admission in a Post-graduate Medical courses in one of the colleges under the Government of Madhya Pradesh. The petitioner who is working in the Employees State Insurance (ESI) Directorate as an Assistant Surgeon applied as an in-service candidate and took the entrance examination and stood 11th in the merit list of general category in-service candidates and was called for counselling held during 27.5.2008 to 31.5.2008, but was refused admission on the ground that rule 1.2( d) of the Rules, 2008 defines an in-service candidate to mean a Medical Officer of the Public Health and Family Welfare Department, who is serving under the Government of Madhya Pradesh on regular or contract basis, but the petitioner was working as an Assistant Surgeon in the ESI Directorate and was not working in the Public Health and Family Welfare Department of the Government of Madhya Pradesh. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution for declaring the definition of 'in-service candidate' in rule 1.2(d) of the Rules, 2008 as discriminatory and violative of Article 14 of the Constitution. 3. Mr. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution for declaring the definition of 'in-service candidate' in rule 1.2(d) of the Rules, 2008 as discriminatory and violative of Article 14 of the Constitution. 3. Mr. Aditya Sanghi learned counsel for the petitioner submitted that in Ram Krishna Dalmia v. Justice Tendolkar [ AIR 1958 SC 538 ], the Supreme Court has laid down the principles to be borne in mind by the Court in determining the validity of statute on ground of violation of Article 14 and has held that Article 14 forbids class legislation but does not forbid reasonable classification for the purpose of legislation. He submitted that the Supreme Court has further held in Ram Krishna Dalmia (supra), that 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 differentia must have a rational relation to the object sought to be achieved by the statute in question. He submitted that the Assistant Surgeons working in the ESI department and the Medical Officers of the Public Health and Family Welfare Department of the Government of Madhya Pradesh perform the same duties and functions and therefore cannot be grouped into two different classes for the purpose of giving opportunities for admission to Post-graduate Medical Courses in the Medical Colleges under the Government of Madhya Pradesh. He further submitted that the classification of Assistant Surgeons working in ESI Department and Medical Officers of the Public Health and Family Welfare Department into two different classes and giving the benefit of in-service candidate only to Medical Officer of the Public Health and Family Welfare Department does not satisfy the twin tests of reasonable Classification laid down by the Supreme Court in Ram Krishna Dalmia (supra). He cited an unreported decision in State of M.P. and another v. Dr. A.K. Singhal, in which the Supreme Court has taken a view that the Assistant Surgeons working in Public Health and Family Welfare Department and the ESI Department carryon similar and identical duties and the Government must act fairly and impartially to all its employees and give them equal opportunities otherwise the classification would be unreasonable and violative of Article 14 of the Constitution. Be submitted that the definition of 'in-service candidate' in rule 1.2( d) of the Rules, 2008 is, therefore, discriminatory and violative of Article 14 of the Constitution. 4. Mr. Samdarshee Tiwari, learned Government Advocate, appearing for the respondents No.1 and 2, on the other hand relying on the additional return filed on behalf of the respondents No.1 and 2, submitted that quota of 20% of the seats of Post-graduate Courses in MD/MS/Diploma has been carved out for in-service candidates who are serving substantially with the Government of M.P. on regular or on contract basis. He submitted that Medical Officers/Assistant Surgeons appointed in the department of Public Health and Family Welfare perform duties in the entire State of Madhya Pradesh in District Hospitals, Community Health Centres and Primary Health Centres situated in rural and tribal areas and thereby provide medical facilities to each and every citizen in the State of Madhya Pradesh. He submitted that the Medical Officers working in different District Hospitals, Community Health Centres and Primary Health Centres need to be upgraded by post-graduate studies so that better medical facilities to the citizens are provided. He further submitted that the Medical Officers in the department of Public Health and Family Welfare cannot compete in open competition for the seats in the medical post-graduate courses and for this reason 20% quota of seats in the medical post-graduate courses is allocated to in-service candidates such as the Medical Officers/ Assistant Surgeons working in the department of Public Health and Family Welfare. He submitted that grouping of these Medical Officers working in the department of Public Health and Family Welfare into a separate class for the purpose of providing them the benefit of this quota allocated to in-service candidates is thus a classification having rational nexus with the object of the rules. He submitted that the definition of in-service candidate in the Rules, 2008 therefore satisfies the test of reasonable classification and is not violative of Article 14 of the Constitution. He relied on paragraph 21 of the judgment reported in the State of Madhya Pradesh dnd others v. Gopal D. Tirthani and others [(2003)7 see 83], in which the Supreme Court has held that there was nothing wrong in the State Government setting apart a definite percentage of educational seats at post-graduation level consisting of degree and diploma courses exclusively for in-service candidates. He also relied on the observations of the Supreme Court in the aforesaid decision that in-service candidates on attaining higher academic achievements would be available to be posted in rural areas by the State Government. He submitted that the petitioner who is an Assistant Surgeon in ESI department of the Government· of Madhya Pradesh is required to work only in ESI Hospitals located in bigger cities in the State of Madhya Pradesh and is not liable to be posted in rural areas and therefore can compete for the open seats and she was not entitled to compete for the in-service seats. He submitted that the definition of 'in-service candidate' in the Rules, 2008 is, therefore, not discriminatory and not violative of Article 14 of the Constitution. 5. We have considered the submissions of Mr Sanghi and Mr. Tiwari and we find that the real object of the Rules, 2008 in allocating 20% seats in the post-graduate medical courses to in-service candidates is to enable such candidates who are not in a position to compete for open seats because of the nature of their duties get an opportunity to secure admission in the medical post-graduate courses and upgrade their qualifications, knowledge and skills for better service to the people of the State. This will be clear from the following observations in paragraph 31 of the judgment of the Supreme Court in AIIM Students' Union v. AIIMS and others [ (2002)1 SCC 428 ] : "The candidates in both the categories were medical graduates. Some of them had done graduation some time in the past and were either picked up in the Government service or had sought for joining Government service because, may be, they could not get a seat in post-graduation and thereby continue their studies because of shortage of seats in higher level of studies. On account of their having remained occupied with their service obligations, they because detached or distanced from theoretical studies and therefore could not have done so well as to effectively compete with fresh medical graduates at the PG entrance examination. Permitting in-service candidates to do post-graduation by opening a separate channel for admittance would enable their continuance in Government service after post-graduation which would enrich health services of the Nation. Candidates in open category having qualified in post-graduation may not necessarily feel attracted to public services. Permitting in-service candidates to do post-graduation by opening a separate channel for admittance would enable their continuance in Government service after post-graduation which would enrich health services of the Nation. Candidates in open category having qualified in post-graduation may not necessarily feel attracted to public services. Providing two sources of entry at the post-graduation level in a certain proportion between in-service candidates and other, candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. The object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to provide protection and encouragement to one at the entry level." 6. Thus, the object of allocating 20% of the seats in post-graduate medical courses in the State of Madhya Pradesh in the rules, 2008 for in-service candidates is to ensure that in-service candidates who on account of service obligations have remained detached from theoretical studies and cannot effectively compete with fresh medical graduates in the postgraduate entrance examination, have a separate channel of admission and the competition is confined to such in-service candidates and in the process they attain higher qualification of post-graduation and are able to provide better service to the people. It has been admitted in paragraph 4 of the additional return filed on behalf of the respondents No.1 and 2 that Medical Officer/Assistant Surgeons belonging to the Directorate of Employees State Insurance Services (ESI) with the Labour Department of the State Government are at par with the Medical Officers/Assistant Surgeons working in the department of Public Health and Family Welfare as far as the nature of work is concerned. The nature of duties of Medical Officers/ Assistant Surgeons working in the ESI hospitals of the Government of Madhya Pradesh are like those of the Medical Officers of the Public Health and Family Welfare Department and they are also out of touch from the theoretical studies and are not in a position to compete with fresh medical graduates. The nature of duties of Medical Officers/ Assistant Surgeons working in the ESI hospitals of the Government of Madhya Pradesh are like those of the Medical Officers of the Public Health and Family Welfare Department and they are also out of touch from the theoretical studies and are not in a position to compete with fresh medical graduates. Such Medical Officers/Assistant Surgeons working in the ESI Department therefore fall into the same group as the Medical Officers/ Assistant Surgeons appointed in the department of Public Health and Family Welfare and are entitled to the same opportunities which the Medical Officers/Assistant Surgeons in the department of Public Health and Family Welfare enjoy for admission to the quota of 20% seats allotted for in-service candidates. 7. The only reason given in paragraph 4 of the additional return for treating such Medical Officers/Assistant Surgeons belonging to the ESI Directorate differently from the Medical Officers/Assistant Surgeons of the department Public Health and Family Welfare is that the Medical Officers/Assistant Surgeons of the ESI Directorate are posted in big towns and cities and are not required to serve in semi-urban, rural or tribal areas whereas the Medical Officers/Assistant Surgeons serving in the department of Public Health and Family Welfare are liable to be posted in such semi-urban, rural or tribal areas. It is, however, not disputed that the Medical Officers/Assistant Surgeons belonging to the department of Public Health and Family Welfare are also posted in big towns and metropolitan cities in the State of Madhya Pradesh and yet such Medical Officers/Assistant Surgeons of the department of Public Health and Family Welfare posted in big town and metropolitan cities in the State of Madhya Pradesh also fall within the definition of 'in-service candidate' under the Rules, 2008 and are entitled to compete for admission to the 20% quota of the post-graduate medical seats allocated for in-service rendered in rural/tribal areas. The object of this provision may be to encourage the Medical officers/ Assistant Surgeons of the department of Public Health and Family Welfare to work in rural and tribal areas after their MBBS, but the object of allocating 20% of post-graduate medical seats in colleges under the Government of Madhya Pradesh is not encouraging medical officers to work in rural and tribal areas. 8. 8. In State of Madhya Pradesh and others v. Gopal D. Tirthani and others (supra), the questions of law for decision before the Court inter alia were whether it is permissible to hold and conduct separate entrance examinations for in-service and open category candidates and whether weightage can be given for the length of service in the rural/tribal areas and the Supreme Court answered both these questions in affirmative. In the aforesaid case, the Supreme Court was not called upon to decide who amongst the Medical Officers/Assistant Surgeons working under the Government of Madhya Pradesh could be treated as in-service candidates for the purpose of admission into the quota allotted for in-service candidates in the post-graduate medical courses. On the other hand, in an unreported decision in State of M.P. and another v. Dr. A.K. Singhal, the Supreme Court has taken a view that the Assistant Surgeons working in the department of Public Health and Family Welfare and in the ESI Department carry on similar and identical duties and the Government must act fairly and impartially to all its employees and give them equal opportunities, otherwise the classification would be unreasonable and violative of Article 14 of the Constitution. 9. We are thus of the considered opinion that the Medical Officers/Assistant Surgeons working under the ESI Directorate in different hospitals in the State of Madhya Pradesh like the Medical Officers/Assistant Surgeons working in the department of Public Health and Family Welfare, on account of the nature of their service obligations are out of touch with theoretical studies and are not in a position to compete in open competition with fresh medical graduates for post-graduate seats in medical courses and have to be grouped together into one class and given equal opportunity to compete for seats allotted to in-service candidates and that exclusion of such Medical Officers/Assistant Surgeons working in the Directorate of ESI from the definition of in-service candidate in the Rules 2008 is discriminatory and violative of Article 14 of the Constitution. 10. 10. In the result, we allow this writ petition and direct that the petitioner who has secured 11th position among the general category candidates as in-service candidate in the post-graduate entrance examination held in 2008 and was deprived of admission to a post-graduate seat, will be allowed to participate in counselling for a post-graduate seat for the year 2009-10 and given admission within the intake capacity of the medical colleges under the Government of Maqhya Pradesh. No order as to costs.