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Madhya Pradesh High Court · body

2010 DIGILAW 737 (MP)

Geeta Bakade v. State Of M. P.

2010-07-22

ARUN MISHRA, S.C.SINHO

body2010
Judgment ARUN MISHRA, J. (1) PETITIONER/Dr. Vijayata Verma in Writ Petition No. 5511/2010 has assailed the constitutional validity of Rule 1.9(1)(c) of Madhya Pradesh Medical and Dental Post Graduate Entrance Examination Rules, 2010 (hereinafter referred to as 'Rules of 2010') (2) THE petitioner in Writ Petition No. 5511/2010 has submitted that she completed her MBBS course from Nagpur University, Nagpur and thereafter completed internship on 17-1-2002 and got registered as Medical Practitioner in M. P. Medical Council. To have specialization in one of the faculty in medical science, the petitioner joined the course of Diploma in Child Health (DCH) in the year 2003 and successfully completed the same. THE State Government through Public Service Commission issued advertisement in the year 2003 for appointment on the post of Assistant Surgeon. After successfully clearing it, the petitioner was appointed as Assistant Surgeon. She also rendered the services in the rural areas. THE petitioner appeared in Pre-PG Test 2009 and she qualified in the said examination but was not allowed to participate in the counselling under the Rules of 2009. THE petitioner filed Writ Petition No. 5325/2009, the same is pending adjudication. THE petitioner could not get admission in M. D. (Pediatrics) in the year 2009. THEreafter examination was held on 14-3-2010 and result was declared on 30-3-2010. THE petitioner was shown as qualified. In the remark column of Sponsorship Certificate, it has been mentioned that the petitioner can only opt for M.D. (Pediatrics). THE petitioner has submitted that the same remark is illegal, arbitrary and discriminatory. THE same has been inserted under the garb of Rule 1.9(l)(c) of the Rules of 2010. THE petitioner choice cannot be restricted to M. D. in Pediatrics. THE said rule has the effect of restricting the choice of the petitioner. THE in-service candidates may not secure enough marks to seek allotment of P. G. seats of their diploma line. Such an incumbent has to be permitted to make the choice and to choose any low merit discipline. In Writ Petition No. 5049/2009, the petitioners have assailed the vires of Rule 9(1 )(d) of the Madhya Pradesh Medical and Dental Post Graduate Entrance Examination 2009 (hereinafter referred to as 'Rules of 2009'). (3) THE petitioners in Writ Petition No. 5049/2009 have submitted that they are in-service candidates. In Writ Petition No. 5049/2009, the petitioners have assailed the vires of Rule 9(1 )(d) of the Madhya Pradesh Medical and Dental Post Graduate Entrance Examination 2009 (hereinafter referred to as 'Rules of 2009'). (3) THE petitioners in Writ Petition No. 5049/2009 have submitted that they are in-service candidates. THEy appeared in 2009 examination but they were deprived of the seats of their choice as per Rule 9(1 )(d) of the Rules of 2009. It is submitted that the petitioner No. 2 wanted to do second post graduation. Petitioner No. 1 has done post graduation in the subject of General Medicine in 2005 and thereafter, she has joined Government Service. Though she is having qualification of M. D. (General Medicine), she again wanted to get post graduation degree in M. S. (Gynecology). (4) THE petitioners have submitted that 20% seats in P.G. courses are reserved for in-service category candidates. Regulation 9 of Medical Council of India provides that admission is to be based on academic merit. THE rules of 2009 are not statutory. THE fetter put on choice of in-service candidates is bad in law. THE same is pari materia with the Rule 9.2(a) of Madhya Pradesh Medical and Dental Post Graduate Course Entrance Examination Rules, 2007 (hereinafter referred to as 'Rules of 2007'). Hence, Rule 9(1 )(d) of the Rules of 2009 and Rule 1.9(l)(c) of the Rules of 2010 deserve to be struck down. In Writ Petition No. 5049/2009, it is contended by the respondents in their return that 20% seats in P. G. Medical courses have been reserved for in- service candidates. The limited seats are available for in-service candidates. A person who has completed post graduation course in one subject has not been permitted under the rules to take any other subject of P. G. medical course. The restriction is reasonable. The rules cannot be said to be ultra vires. (5) LEARNED counsel appearing for the petitioners have submitted that Rule 9(1)(d) of the Rules of 2009 and Rule 1.9(1)(c) of the Rules of 2010 restricting the choice of the in-service candidate deserve to be declared ultra vires. It is also submitted that Rule 9(1)(d) of the Rules of 2009 and Rule 1.9(1)(c) of the Rules of 2010 are violative of the Article 14 of the Constitution of India. It is also submitted that Rule 9(1)(d) of the Rules of 2009 and Rule 1.9(1)(c) of the Rules of 2010 are violative of the Article 14 of the Constitution of India. Illegal restriction has been imposed on in-service candidate who has done post graduation (degree/diploma) in one subject will not be eligible for admission in another subject. The said rules deserve to be struck down as choice of in-service candidate is being restricted unduly by operation of the said rules. (6) COUNSEL for petitioners have relied upon a Division Bench decision of this Court in Dr. Shailendra Kumar Patne vs. State of M. P. and others, 2007(2) MPLJ 447 - AIR 2007 M. P. 162 and a decision of the Apex Court in State of M. P. and others vs. Gopal D. Tirthani and others, AIR 2003 SC 2952 . Shri Deepak Awasthy, Government Advocate for the respondent/State has supported the rules in question and has submitted that the person who has done diploma in one subject can opt for a degree course in the same subject. It is unheard in medical science that a person is having a degree of M. D. (Medicine) and M. S. (Surgery) at the same time. Option is available to an incumbent to appear in the same subject. Hence, the restriction cannot be said to be illegal and arbitrary. Reliance has been placed on a Division Bench decision of this Court in Dr. Ashish Raj vs. State of M. P. and others decided on 28-4-2010. (7) RULE 9(1)(d) of the RULEs of 2009 is quoted below :- "The in-service candidates, who have done Post Graduation in one subject (degree/diploma) will not be eligible for admission in another subject." (8) RULE 9(l)(d) of the RULEs of 2009 and RULE 1.9(l)(c) of the RULEs of 2010 are pari materia. There is allocation of 20% seats of the post graduation course, the same has been upheld by the Apex Court in State of M. P. vs. Gopal D. Tirthani (supra). The Apex Court has laid down that the laudable object sought to be achieved by making provision of allocation of 20% of seats is that in-service candidates on achieving higher achievements would be available to be posted in rural areas and giving weightage to the rural services rendered has also been held to be permissible. The Apex Court has laid down that the laudable object sought to be achieved by making provision of allocation of 20% of seats is that in-service candidates on achieving higher achievements would be available to be posted in rural areas and giving weightage to the rural services rendered has also been held to be permissible. At the same time, the Apex Court has held that holding of separate entrance test for open category candidates is not legal. There should be only one common entrance test for both the categories. The concept of minimum qualifying marks cannot be given a complete go by wherein seats are limited and discipline is considered to be more creamy. If at all there can be departure, that has to be minimal and that too only by approval of experts in the field of medical education. In Writ Petition No. 5511/2010, petitioner/Dr. Vijayata Verma has completed P. G. Diploma in Child Health (DCH) in the year 2005 and by operation of the rules in question, she is entitled to opt for M. D. (Pediatrics). In Writ Petition No. 5049/2009, petitioner No. 1/Dr. Geeta Bakade, a lady doctor, has done Post Graduation in General Medicine and wanted to do M. S. in Gynecology. Similarly, petitioner No. 2/Dr. Narendra Bakade has done post graduation and he again wanted to do a second post graduation. (9) RULE 9(1 )(d) of the RULEs of 2009 and RULE 1.9(l)(c) of the RULEs of 2010 cannot be said to be ultra vires as it puts a reasonable restriction on the in- service candidate who has done post graduation in one subject i.e. degree/ diploma will not be eligible for admission in another subject; they can do further degree or diploma course in the same subject. Thus, a person who has done diploma course in one subject can opt for a degree course in the same subject. The rule cannot be said to be putting total embargo on the choice of the petitioners but it has the effect of streamlining their choice. By doing degree/diploma course in one of the subject, it is considered that expertise is acquired in that field by an incumbent. It cannot be acquired by an incumbent by opting for different subjects at post graduation level. These subjects are of special skill. An incumbent of Medicine cannot be permitted to undertake course of Surgery and vice versa. By doing degree/diploma course in one of the subject, it is considered that expertise is acquired in that field by an incumbent. It cannot be acquired by an incumbent by opting for different subjects at post graduation level. These subjects are of special skill. An incumbent of Medicine cannot be permitted to undertake course of Surgery and vice versa. Under Article 51-A of the Constitution of India, the petitioners have the duty to strive towards excellence and that can be done by doing work in a particular field. The rule is in furtherance of achieving the said objective. (10) WE find force in the submission of Shri Deepak Awasthy, Government Advocate appearing for the respondent/State that it is unheard that a person is having M. D. in Pediatrics and M. D. in Surgery at the same time. No rules enabling such a recourse framed by the Medical Council of India are shown to exist by the petitioners. Rule 9(1)(d) of the Rules of 2009 and Rule 1.9(1)(c) of the Rules of 2010 cannot be said to be illegal, arbitrary nor it is shown that the said rules are against the directives issued by the Medical Council of India. The vires of Rule 1.9(1)(c) of the Rules of 2010 has been upheld by a Division Bench decision of this Court in Ashish Raj vs. State of M. P. (supra) vide Order dated 28-4-2010. Learned counsel appearing on behalf of the petitioners have relied upon a Division Bench decision of this Court in Dr. Shailendra Kumar Patne vs. State of M. P. (supra) in which question which arose for consideration was whether a demonstrator in Pharmacology who has completed more than twelve years of service could be permitted to opt for any other subject then that of Pharmacology. He was not allotted the seat in M. D. (Pharmacology). Rule 9.2(a) of the Rules of 2007 depriving the said incumbent to opt a seat in his own subject was declared to be ultra vires. It is pertinent to mention here that the said Rule 9.2(a) of the Rules of 2007 had different field to operate. He was not allotted the seat in M. D. (Pharmacology). Rule 9.2(a) of the Rules of 2007 depriving the said incumbent to opt a seat in his own subject was declared to be ultra vires. It is pertinent to mention here that the said Rule 9.2(a) of the Rules of 2007 had different field to operate. Rule 9.2(a) of the Rules of 2007 is quoted below :- "9.2(a) Demonstrators working on regular basis in Medical College of Government of Madhya Pradesh who have completed five years of regular service, will be eligible to opt a seat in their own subject only in which they are working. In case of selection to PG course, the demonstrator has to execute a bond to serve the State Government for five years after completion of degree course. As per Government order the demonstrator has to execute bond of Rs. 3 Lacs compulsorily. The maximum age limit for selection to PG course for demonstrator will be 45 years on 30th April of exam year." The idea behind the aforesaid rule was that the demonstrator does not leave the service after completing the post graduation course in another subject. What is significant that the rule was not restricting the choice of the candidate, who has done P. G. degree/diploma in one subject, could not do post graduation in another subject. The said demonstrator has not done any post graduation course. The restriction sought to be imposed was to ensure that the incumbent does not leave the service hence was declared to be ultra vires but complexion of the rules in question is totally different. Rule 9(1 )(d) of the Rules of 2009 and Rule 1.9(1)(c) of the Rules of 2010 have different field to operate. Thus, the aforesaid decision has no application to the facts of the instant cases. (11) WE also find no force in the submission that the Rule 9(1)(d) of the Rules of 2009 and Rule 1.9(1)(c) of the Rules of 2010 have no statutory force. The aforesaid rules have been framed in exercise of powers under section 10 of Madhya Pradesh Chikitsa Shiksha Sansthan Niyantran Adhiniyam, 1973 as mentioned in the notification itself. The rules have also not been shown to be repugnant to any directive issued by the Medical Council of India. The aforesaid rules have been framed in exercise of powers under section 10 of Madhya Pradesh Chikitsa Shiksha Sansthan Niyantran Adhiniyam, 1973 as mentioned in the notification itself. The rules have also not been shown to be repugnant to any directive issued by the Medical Council of India. (12) WE equally find no force in the submission that the petitioners should be permitted to opt for a subject of lower merit as the petitioners could not reach to the merit to opt for the same subject in which they have done degree/diploma. In State of M. P. vs. Gopal D. Tirthani (supra), the Apex Court has also held that there has to be only one common entrance test and merit cannot be given total go-by by allocating 20% seats to the in-service candidates. Thus, the petitioners have to stand on their merit position in examination and to fulfil the requirement of the rules in question also. Resultantly, we do not find any merit in the writ petitions. The same are hereby dismissed. No costs. Petitions dismissed.