JUDGMENT 1. The legality and correctness of the selection process adopted for admission to the Higher Speciality Courses in Tamil Nadu is under challenge in this batch of writ petitions at the instance of non-selected candidates from open category primarily on the ground that undue preference was given to the in service candidates, sacrificing the merit. Facts in nutshell: 2. The petitioners in W.P.Nos.21156 and 21157 of 2013 made applications for Higher Speciality Courses in Surgical Gastroenterology for the year 2013-2014. The petitioner in W.P.No.20772 and 20773 of 2013 applied for D.M. (Cardiology) course. Similarly, the petitioner in W.P.No.20136 of 2013 applied for the course in D.M. (Nephrology) course. The petitioner in W.P.No.20780 of 2013 applied for Mch. Surgical Oncology Course. The petitioners who have applied under the Open Merit Category took part in the entrance examination. Thereafter they attended the counselling on 22 July 2013. The Selection Committee published the provisional merit list. However, while making selection, separate merit list for service category was not drawn and as a result, service candidates were given a march over the open category candidates. It is the grievance of the petitioners that in case service candidates were included in a separate list on the basis of their inter se merits in the entrance examination and another list for the open category candidates, the meritorious candidates would have got admission on the basis of their rank position. In short, the petitioners allege that service candidates were admitted against the 50% quota earmarked for open merit. The petitioners, therefore, wanted the selection list in respect of the respective Speciality Course to be quashed and to prepare a separate merit list for service as well as open category and to give admission to the inservice candidates only from the service merit list. Defense: 3. The Additional Director of Medical Education-cum-Secretary, Selection Committee filed counter affidavits separately in all these writ petitions. According to the Additional Director of Medical Education, open merit list comprised both non-service and service category. The Government took a policy decision to earmark 50% seats exclusively to the service candidates and the remaining 50% to the open merit category. Defense: 3. The Additional Director of Medical Education-cum-Secretary, Selection Committee filed counter affidavits separately in all these writ petitions. According to the Additional Director of Medical Education, open merit list comprised both non-service and service category. The Government took a policy decision to earmark 50% seats exclusively to the service candidates and the remaining 50% to the open merit category. The prospectus issued by the Selection Committee indicates that a common merit list would be prepared in respect of service as well as non-service candidates and 50% of the seats would be reserved for the service candidates in addition to the seats secured by the service candidates by competing with others. The Additional Director further contended that clause 63 of the prospectus contained a declaration regarding knowledge about the contents of prospectus and an undertaking that the terms and conditions of the selection would not be challenged after appearing in the entrance examination. It was further contended that the selection was made strictly in accordance with the prospectus issued by the Government and as such no interference is called for. 4. The fifth respondent in W.P.No.21556 of 2013 and the sixth respondent in W.P.No.20780 of 2013 filed separate counter affidavits. The selected candidates contended that the petitioners are under a total misconception that open category is a reserved list for private/non-service candidates. According to the selected candidates, open category is open to all the candidates. Even the service candidates completed along with others and on account of their merit position, they were given admission. Since 50% of the total seats were reserved for service candidates, the selection of service candidates on account of their own merit cannot be taken into account. They have also contended that the writ petitions at the instance of non-selected candidates are not maintainable after taking part in the selection process. Submissions: 5. Mrs. P. Bagyalakshmi, learned counsel for the petitioners in W.P.Nos.21156 and 21157 of 2013 by placing reliance on the judgment of Supreme Court in K. Duraisamy v. State of Tamil Nadu (2001) 2 SCC 538 and the subsequent decisions following Duraisamy's case submitted that the selection now made by the Selection Committee violated the dictum laid down in Duraisamy's case. According to the learned counsel, the Supreme Court time and again made the position very clear that there cannot be any reservation in Super Speciality Courses. According to the learned counsel, the Supreme Court time and again made the position very clear that there cannot be any reservation in Super Speciality Courses. The learned counsel contended that merit was given a go by and service candidates were admitted more than the quota allotted to them. The learned counsel by placing reliance on the recent judgment of the Supreme Court in Faculty Association of Aiims v. Union of India & ors. (2013) STPL (Web) 580 contended that the Supreme Court disapproved the policy adopted by the All India Institute of Medical Sciences following the system of institutional reservation. It was further contended that the selection committee violated the norms prescribed in the prospectus. It was submitted that it is not necessary to challenge the prospectus inasmuch as the request itself is to conduct the selection only in accordance with the terms and conditions of the prospectus. The learned counsel, therefore, wanted to quash the impugned selection list and to redraw the same by dividing it into two lists and to allot seats to the private candidates without reference to the service candidates whose names were included in the open merit list. 6. Thiru G. Justin, learned counsel for the petitioners in W.P.Nos.20772, 20773, 20780 and 20136 of 2013 re-iterated the contentions taken by the learned counsel for the petitioners in W.P.No.21156 and 21157 of 2013. The learned counsel by placing reliance on the judgments of the Supreme Court in (2001) 2 SCC 538 (K. Duraisamy and Another v. State of Tamil Nadu); AIR 2001 SC 3262 (A.I.I.M.S. Students Union v. A.I.I.M.S. And others); (2003) 11 SCC 146 (Saurabh Chaudri & Others v. Union of India & Others); AIR 1984 SC 1420 (1) (DR. Pradeep Jain v. Union of India); AIR 1980 SC 820 (Dr. Jagdish Saran and others v. Union of India and others), AIR 1999 SC 2894 (1) (Dr.Preeti Srivastava and another v. State of M.P. and Civil Appeal No.4500 of 2002 (Faculty Association of AIIMS v. Union of India) submitted that the legal position is very clear that there should not be any kind of reservation in respect of Super Speciality Courses. According to the learned counsel, the Selection Committee adopted a wrong procedure and thereby denied admission to the meritorious candidates. In fact, in one writ petition the entire seats were allotted to service candidates by following 100% reservation. 7. According to the learned counsel, the Selection Committee adopted a wrong procedure and thereby denied admission to the meritorious candidates. In fact, in one writ petition the entire seats were allotted to service candidates by following 100% reservation. 7. Thiru A.L.Somayaji, learned Advocate General appearing for the Selection Committee in all the writ petitions submitted that the Government took a policy decision to allot 50% seats to the service candidates, in addition to those service candidates who got selection by competing with others. The petitioners were fully aware of the terms and conditions of prospectus which states that only one open merit list for service as well as non-service candidates, would be prepared. The petitioners knowing very well the terms and conditions of selection took part in the process. When it was found that they were unsuccessful, they have come up with these writ petitions challenging the selection. The prospectus remained as it is. According to the learned Advocate General, Duraisamy's case has no application to the facts of the present case. There was a different policy in force during the academic year 1999-2000. The learned Single Judge of this Court as well as the Division Bench interpreted the policy for the year 1999-2000 with reference to the policy of 1998-1999. It was in that factual background, the Supreme Court decided the issue in K.Duraisamy's case. The learned Advocate General further submitted that the petitioners have given a declaration that they were aware of the terms and conditions of the prospectus and they would not challenge it subsequently and as such writ petitions are not maintainable. 8. Thiru AR.L.Sundaresan, learned Senior Counsel appearing for respondents 5 and 6 in W.P.No.21156 and 21157 of 2013 and respondent No.6 in W.P.No.20780 of 2013 contended that the petitioners have proceeded as if 50% seats were reserved for open category candidates. According to the learned Senior Counsel there was no prohibition for service candidates to complete with others in open category. The learned Senior Counsel by reading the judgment of the Supreme Court in K. Duraisamy in its entirety submitted that the issue before the Supreme court in the said case was in relation to a different policy. Therefore the said judgment would not be of any help to the petitioners to challenge the selection for the year 2013-2014. Factual Analysis: 9. Therefore the said judgment would not be of any help to the petitioners to challenge the selection for the year 2013-2014. Factual Analysis: 9. The selection process for admission to the Super Speciality Course during the year 2013-2014 is challenged mainly on the ground that the service candidates were given a march over open category candidates in spite of the Law declared in Duraisamy. Relevant norms: 10. In order to decide the issue raised in these writ petitions, brief reference to certain provisions of the prospectus is apposite. "33. Scheme of Entrance Examination: All the candidates seeking admission should appear for an Entrance Examination conducted by the Selection Committee. 41. Merit List: Two merit lists- 1) Open Merit List and 2) Service Merit List will be published. Open merit list (for both service and non-service) for each discipline of the Higher Speciality course will be prepared by computing the entrance examination marks and experience marks, which will be calculated to a maximum of 100 (Entrance Examination marks to a maximum of 90+ Experience Marks to a maximum of 10). Service merit list will be published separately. 44. Method of Selection and Admission: (a) The final preparation of the selection list/waiting list for admission of candidates to the various disciplines of the Higher Speciality Courses will be made on the basis of the merit list for each Higher Speciality. 45. (a) The selection will be made by counselling based on merit only and no communal reservation will be followed. (b) 50% of the seats in each speciality and in each college are reserved for service candidates, in addition to those service candidates selected in the open category. In case an odd number seat remains in any speciality in the total seats sanctioned for that speciality, that seat shall be marked for open category and filled by merit. (c) If there are no Non-service candidates opting for any Higher Speciality Course, the same will be allotted to service candidates and vice versa. 63. Any candidate appearing for the entrance examination is deemed to have read the content in this prospectus and agrees with all the conditions and clauses and will not have the right to challenge any of the Regulations after appearing for the Entrance Examination." 11. The petitioners have placed heavy reliance on the judgment of the Supreme Court in K.Duraisamy v. State of Tamil Nadu (2001) 2 SCC 538 . The petitioners have placed heavy reliance on the judgment of the Supreme Court in K.Duraisamy v. State of Tamil Nadu (2001) 2 SCC 538 . 12. Before adverting to the facts of the present writ petitions in the light of the policy adopted by the Government of Tamil Nadu for the academic year 2013-2014 with respect to Super Speciality Course, it is necessary to look into the policy which was the subject matter in K.Duraisamy. The Law decided in K. Duraisamy Case:- 13. (a) The Health and Family Welfare Department, Government of Tamil Nadu issued an order in G.O.Ms.No.55 dated 9 February 1999 indicating the procedure for selection of candidates for admission to postgraduate diploma, degree, MDS and Higher Speciality Courses for the academic year 1999-2000. The Government reserved 50% of the seats in favour of non-service candidates and the remaining 50% was allotted to the service candidates. Since the quota was prescribed separately for service and non-service candidates, the policy contained a specific bar prohibiting the service candidates from competing with the non-service candidates in the 50% quota earmarked for them. The service candidates having found that it was not possible to obtain admission under the service quota wanted to compete with non-service candidates. The learned Single Judge having found that the service candidates were permitted to take part in the selection process during the academic year 1998-1999 by competing with open category /non-service candidates, allowed the writ petition. The decision was confirmed by the Division Bench. Thereafter, another batch of cases came up before another Division Bench. The Division Bench entertained a doubt with regard to the correctness of the view taken by the earlier Division Bench and the same resulted in referring the matter to a Full Bench. The Full Bench arrived at a finding that there were two compartments. Service candidates have to compete against the 50% quota allotted to them. They are not eligible to compete with the non-service candidates in view of reserving 50% seats exclusively for in-service candidates. The Full Bench arrived at a finding that there were two compartments. Service candidates have to compete against the 50% quota allotted to them. They are not eligible to compete with the non-service candidates in view of reserving 50% seats exclusively for in-service candidates. The Full Bench after discussing the policy of the year 1998-1999 and the revised policy of the year 19992000 observed that the stipulation that the reservation would be confined to and kept at 50% in favour of the non-service candidates on merit basis, coupled with the other provisions would make it clear that the selection of service candidates was confined to and has to be kept at 50% of the total seats and not against any of the other seats exclusively earmarked for the non-service or private candidates. The Full Bench allowed the writ appeals and dismissed the writ petitions. (b) The aggrieved in-service candidates approached the Supreme Court. The Supreme Court agreed with the views expressed by the Full Bench and dismissed the appeals. The Supreme Court held: "(i) the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion; (ii) that such allocation of seats in the form of fixation of quota is not to be equated with the usual form of communal reservation and, therefore, the constitutional and legal considerations relevant to communal reservations are out of place while deciding the case based on such allocation of seats; (iii) that such exclusive allocation and stipulation of a definite quota or number of seats between in-service and non-service or private candidates provided two separate channels of entry and a candidate belonging to one exclusive quota cannot claim to steal a march into another exclusive quota by advancing a claim based on merit. Inter se merit of the candidates in each quota shall be determined based on the merit performance of the candidates belonging to that quota; (iv) that the mere use of the word "reservation" per se is not decisive of the nature of allocation. Inter se merit of the candidates in each quota shall be determined based on the merit performance of the candidates belonging to that quota; (iv) that the mere use of the word "reservation" per se is not decisive of the nature of allocation. Whether it is a reservation or an allocation of seats for the purpose of providing two separate and exclusive sources of entry would depend on the purpose and object with which the expression has been used and that would be determinative of the meaning, content and purport of the expression. Where the scheme envisages not a mere reservation but is one for classification of the sources from which admissions are to be accorded, fixation of respective quota for such classified groups does not attract applicability of considerations relevant to reservation simpliciter." 14. The policy framed by the Government for the year 1999-2000 provides that the quota earmarked for service candidates would be filled up exclusively from such in-service candidates on the basis of their own inter se merit and not on the over all merit performance of all the candidates both in-service and non-service put together. The writ petitioners in Duraisamy's case submitted applications as in-service candidates and having found that they would not be selected out of the number of seats earmarked for service candidates on the basis of the inter se merits among their own classes, they have made an attempt to encroach upon the seats earmarked for non-service candidates. It was only in the said factual context, the Supreme Court arrived at a conclusion that the service candidates have no right to compete with the open category candidates. 15. The education policy adopted by the Government and the related policy regarding reservation would be reflected in the prospectus. The prospectus is a basic document which would bind the selection committee as well as the applicants. Both parties are bound by the terms and conditions of prospectus. 16. The selection committee issued a prospectus taking into account the policy framed by the Government with respect to Super Speciality Courses for the academic year 2013-2014. The prospectus contained a very clear declaration that there would be only one open merit list for both service and non-service candidates in respect of each discipline of Higher Speciality Course. 16. The selection committee issued a prospectus taking into account the policy framed by the Government with respect to Super Speciality Courses for the academic year 2013-2014. The prospectus contained a very clear declaration that there would be only one open merit list for both service and non-service candidates in respect of each discipline of Higher Speciality Course. Clause 45(b) of the prospectus shows that 50% of the seats in each speciality and in each college are reserved for service candidates, in addition to those service candidates selected in the open category. The Government therefore made it very clear that only one open merit list would be prepared for both service and non-service candidates. There was only one examination common to both service and non-service candidates. The private candidates like the petitioners took part in the entrance examination along with the service candidates. The Government thereafter prepared a common open merit list for both service and non-service candidates. The Selection Committee taking into account the total sanctioned intake for a particular Super Speciality Course allotted 50% seats first to the candidates in the order of merit. Thereafter the selection committee operated the service quota. 17. For instance, there were eight seats in DM Surgical Gastroenterology. The first four candidates in the merit list were given admission under open merit category. The second and fourth candidates though belonged to service category, secured more marks and as such they were given admission without operating the service quota. Since the prospectus contained a statement that 50% seats would be earmarked for service candidates, in addition to the service candidates already selected in open category by open competition, naturally, the next four seats should be given to the service candidates. 18. The petitioners now wanted the selection committee to prepare two lists separately. In case the said request is entertained, it would result in placing the meritorious service candidates in the list prepared for filling up 50% service quota. The petitioners have proceeded as if 50% reservation was made in favour of open category candidates. The reservation was given only to the service candidates. The Government wanted to ensure 50% seats to the service candidates in addition to the seats secured by them by competing with others in the open merit category. The petitioners have proceeded as if 50% reservation was made in favour of open category candidates. The reservation was given only to the service candidates. The Government wanted to ensure 50% seats to the service candidates in addition to the seats secured by them by competing with others in the open merit category. Merely because a candidate who scored more marks happened to be a service candidate, it cannot be a reason to treat him as a service candidate not withstanding his merit and rank position. 19. By conducting common entrance examination, the Government have made it clear that irrespective of the quota, all the candidates should compete and they would be included in the open merit list. The service as well as non-service candidates took part in the entrance examination. The merit list was drawn in accordance with clause 41 of the prospectus. The petitioners have no case that the service candidates, who were given admission at the first instance, secured only less marks than the non-service candidates and they were given a march over meritorious candidates. In fact the merit list referred to earlier in respect of D.M. Surgical Gastroenterology clearly shows that the two selected candidates from the service category secured 78.25% as against 76.65% secured by the next candidate from non-service category. The difference in marks also appears to be very negligible. 20. The petitioners would be justified in their contention in case the Government policy provides that it is not open to the service candidates to compete with non-service candidates. This year the Government have followed the policy of the year 1998-1999 instead of the policy (1999-2000) which was the subject matter in K. Duraisamy's case. 21. The petitioners have placed reliance on clause 45(c) of the prospectus which provides that if there are no non-service candidates opting for any Higher Speciality Course, the same will be allotted to service candidates and vice versa. The said clause only provides that in case there are no sufficient candidates in service category, candidates from non-service category would be given admission. Similarly, it would show that in case there are no non-service candidates, admission would be given to the service candidates. The said clause would not in any way improve the case of writ petitioners. 22. The various clauses in the prospectus have to be read together. Similarly, it would show that in case there are no non-service candidates, admission would be given to the service candidates. The said clause would not in any way improve the case of writ petitioners. 22. The various clauses in the prospectus have to be read together. A conjoint reading of all the provisions together would make the position very clear that the Government have adopted a policy to prepare a single merit list comprising service as well as non-service candidates. Since 50% seats were earmarked for service candidates, necessarily those candidates who were placed in the open merit list on account of their merit and ranking should be given admission at the first instance. The question of operating the service quota would arise only thereafter. The petitioners were aware of all these provisions before taking part in the selection process. It is therefore not open to the petitioners now to contend that the failure to prepare two separate lists and inclusion of meritorious service candidates in the open merit list would vitiate the selection. In case any such contention is entertained, the same would go against the terms and conditions of prospectus. 23. There is no dispute that the Government is entitled to decide the channel of admission. The quota earmarked to the service candidates cannot be treated as a reservation in its true sense. It is only a source and not a reservation as such. 24. The service candidates have been serving the Government Hospitals. They have been attending to the needs of poor people who have no resources at their command to take treatment from Corporate Hospitals. The Government wanted to encourage medical graduates to serve Rural and Taluk Hospitals. It was only to give inducement for Rural Service, the Governments have framed a policy reserving seats for service candidates. This is not a new policy. The State of Tamil Nadu has been following this policy like other States. The petitioners, in spite of information with regard to reservation for service candidates in post-graduate courses, opted to join only private institutions. Now they are seeking admission by sidelining the service candidates. 25. The Government have proportionately distributed the seats. The service candidates were given only 50% quota. The quota would not include those service candidates who have competed with non-service candidates and got selection on account of their own merit. Now they are seeking admission by sidelining the service candidates. 25. The Government have proportionately distributed the seats. The service candidates were given only 50% quota. The quota would not include those service candidates who have competed with non-service candidates and got selection on account of their own merit. The quota was fixed only to ensure minimum 50% seats to the service candidates. The legal position: 26. The question regarding reservation of seats in favour of service candidates and the increase in reservation from 25% to 50% came up for consideration before the Supreme Court in Pre-P.G.Medical Sangharsh Committee v. Dr. Bajrang Soni (2001) 8 SCC 694 . The Supreme Court while approving the reservation of seats for service candidates observed that it is within the province of the Government to reserve seats for service candidates, in larger public interest. The Supreme Court held: "7. It is permissible for the Government to fix such a source or classification of candidates from which selection for admission to the Post-graduate Colleges in the State had to be made for yet another genuine, relevant and reasonable cause and purpose, which has, in our view, sufficient nexus to the larger goal of equalization of educational opportunities and to sufficiently prefer the doctors serving in the various Hospitals run and maintained from out of public funds by the Government or Government departments, in the absence of which there would be serious dearth of qualified post-graduate doctors and experts to meet the requirements of such Hospitals run by the State and State Departments, the only avenue open for treatment of the large body of ordinary common man, all over the State. This larger public interest, unlike reservations envisaged for SC/ST with a different and laudable purpose to assist educationally backward classes, is a distinct and vitally important public purpose in itself absolutely necessitated in the best of public interest." 27. The Supreme Court in State of M.P. v. Gopal D. Tirthani (2003) 7 SCC 83 upheld the power of State Government setting apart a percentage of seats at post-graduate level. "There is 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 the in-service candidates. To the extent of the seats so set apart, there is a separate and exclusive source of entry or channel for admission. "There is 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 the in-service candidates. To the extent of the seats so set apart, there is a separate and exclusive source of entry or channel for admission. It is not reservation. In-service candidates, and the candidates not in the service of the State Government, are two classes based on an intelligible differentia. There is a laudable purpose sought to be achieved. In-service candidates, on attaining higher academic achievements, would be available to be posted in rural areas by the State Government." 28. The judgment in Faculty Association of All India Institute of Medical Science (C.A.No.4500 of 2002) has no relevance to decide the issue raised in these writ petitions. The Supreme Court in AIIMS considered the issue asto whether reservation was inapplicable to Speciality and Super Speciality Faculty posts in a premier institution of National Importance like All India Institute of Medical Sciences. The Supreme Court referred to Indra Sawhney's case and observed that the very concept of reservation implies mediocrity and the Court has to take note of the caution indicated in the said judgment. The observation was not in the context of admission to speciality or super speciality courses and it was confined to public appointment. 29. The petitioners have placed reliance on various other judgments of Supreme Court relating to reservation in Super Speciality Courses. There is no dispute with regard to the legal proposition enunciated in all these decisions. Therefore I a not dealing with those decisions. The petitioners have not challenged the clause regarding 50% reservation given to the service candidates. The challenge is only against the preparation of common merit list comprising service as well as non-service candidates. The provision regarding preparation of open merit list, common to both service and non-service candidates is also not under challenge. Since selection was made in accordance with the policy of the Government permitting service candidates also to compete with non-service category candidates and reserving 50% exclusively to them in addition to the seats secured by service candidates by open merit, it cannot be said that the impugned selection was in violation of the law laid down by the Supreme Court. 30. 30. The legality and correctness of the authority vested in UGC to prescribe final eligibility criteria after holding National Eligibility Test for candidates came up for consideration before the Supreme Court in UGC v. Neha Anil Bobde (judgment dated 19 September 2013 in Civil Appeal Nos.8356 and 8357 of 2013). The Supreme Court found that the stipulation regarding prescription of final eligibility criteria was known to the candidates even before taking part in the qualifying examination. The Supreme Court observed that such prescription would not amount to a change in the Rule of game as it was already pre-medicated in the notification. 31. The observation in UGC case would apply to the facts of this case. The petitioners took part in the selection process knowing very well that only one merit list would be prepared for both service and non-service candidates. The non-selection made them to file these writ petitions with a prayer to prepare two separate merit lists, not withstanding clause 41 of the prospectus. 32. The selection was made in the light of prevailing policy and by following the norms indicated in the prospectus for the year 2013-2014. The service candidates were not given any undue advantage by the Government. Since the selection was made strictly in accordance with the prospectus, there is no question of setting aside the select list. 33. In the upshot, I dismiss the writ petitions. Consequently the connected Mps are closed. No costs.