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2014 DIGILAW 2056 (MAD)

P. Kapil Nagaraj v. Director of Medical Education

2014-07-10

M.SATHYANARAYANAN, N.PAUL VASANTHAKUMAR

body2014
Judgment : N. Paul Vasanthkumar, J: 1. This writ appeal is preferred against the order of the learned single Judge made in W.P.No.21157 of 2013 dated 25.9.2013, wherein the appellant had challenged the admission of respondents 3 and 4 in the Higher Specialty Course Surgical Gastroenterology (M.Ch.) for the year 2013-2014 in Tamil Nadu Government Medical Colleges and for a direction to respondents 1 and 2 to admit the appellant in the said course under Open Category, who was placed in waiting list No.2. 2. The learned Single Judge dismissed the writ petition taking note of the Prospectus issued for admission to Higher Specialty Courses for the year 2013-2014, which was issued pursuant to G.O.(D)No.597 Health and Family Welfare Department dated 7.6.2013. 3. The case of the appellant before the learned single Judge was that he had passed M.B.B.S. degree from Madras Medical College in the year 2005; completed post graduation M.S.(General Surgery) in the year 2010; and also completed two years compulsory service from 29.9.2009 to 2.1.2012 in terms of the bond executed at the time of joining P.G. course, as Senior Resident in the Department of Surgical Gastroenterology, Government Mohan Kumaramangalam Medical College, Salem, and then as Senior Resident in the Department of General Surgery, Government Vellore Medical College, Vellore, from 3.1.2012 to 21.12.2012. The first respondent invited applications for admission to Higher Specialty Courses 2013-2014 and the appellant applied and appeared in the entrance examination conducted on 7.7.2013. The merit list was published on 12.7.2013 and counseling for admission was conducted on 22.7.2013 and the appellant attended the counseling. 138 candidates were placed in the merit list for Surgical Gastroentrology (M.Ch.) for eight seats. Petitioner secured 72.25 marks out of 100. The seats were allotted in the following manner: S.No Rank ENT No. Name SERV TMARK Speciality College 43 1 41139 Dr.J.Jeya Sudhahar PRIV 84.25 Surgical Gastro enterology MMC, Chennai Open MMC 44 2 41039 Dr.Senthil Prabhu. M SERV 78.25 Surgical Gastro enterology SMC, Chennai Open Stanley 45 3 41064 Dr. S. Balakumaran PRIV 76.75 Surgical Gastro enterology MMC, Chennai Open MMC 46 4 40004 Dr.Perungo. M SERV 78.25 Surgical Gastro enterology SMC, Chennai Open Stanley 45 3 41064 Dr. S. Balakumaran PRIV 76.75 Surgical Gastro enterology MMC, Chennai Open MMC 46 4 40004 Dr.Perungo. T. SERV 74.75 Surgical Gastro enterology MMC, Chennai Open MMC 47 7 41109 Dr.M.Pon Chidambaram SERV 72.00 Surgical Gastro enterology SMC, Chennai SERV Stanley 48 9 41239 Dr.V.Rajendran SERV 71.25 Surgical Gastro enterology MMC, Chennai SERV MMC 49 11 41156 Dr.John Grifson SERV 70.50 Surgical Gastro enterology MMC, Chennai SERV MMC 50 12 41142 Dr.Suga Prakash.S SERV 70.00 Surgical Gastro enterology MMC, Chennai SERV MMC According to the appellant, though 50% of vacancies are earmarked for Open Merit category candidates, those seats were also filled up with two Service Category candidates viz., Dr.M.Senthil Prabhu, who secured 78.25 marks, and Dr.T.Perungo, who secured 74.75 marks, under Open category seats, and thus, appellant's selection/admission to Surgical Gastroenterology course (M.Ch.) was denied. Hence the appellant challenged the admission of respondents 3 and 4 in the writ petition and the learned single Judge dismissed the said writ petition by order dated 25.9.2013. 4. It is the primary contention of the appellant that as per Clause 41 of the Prospectus, two merit lists viz., Open Merit List and Service Merit List should be published, whereas only one merit list was published containing both categories of candidates, and therefore Clause 41 of the Prospectus was not followed by the official respondents. 5. The learned counsel for the appellant submitted that as per Clause 45 of the Prospectus, 50% of the seats in each Specialty Course in each college are reserved for Service Candidates in addition to the service candidates selected under Open Merit Category and if no non-service candidate opt for Higher Specialty Courses, the same will be allotted to Service Candidates and vice-versa. Learned counsel further submitted that due to non-drawing of separate merit lists (Open Merit List and Service Merit List), respondents 3 and 4 were selected under Open Merit Category, even though they belong to Service Category, and therefore their selections are to be set aside and appellant being the next person available for selection under Open Merit category with 72.25 marks, he is bound to be selected and admitted for the course. In support of her contentions, the learned counsel for the appellant herein relied on the decisions of the Supreme Court reported in (2001) 2 SCC 538 (K.Duraisamy v. State of T.N.). In support of her contentions, the learned counsel for the appellant herein relied on the decisions of the Supreme Court reported in (2001) 2 SCC 538 (K.Duraisamy v. State of T.N.). The learned counsel further submitted that admission to Higher Specialty Courses for the year 2013-2014 was over and for admission to Higher Specialty Courses for the year 2014-2015 also appellant applied and he is going to write the entrance examination to be held on 13.7.2014. Therefore, even though the prayer sought for in the writ petition was for admission to the year 2013-2014, the relief can be moulded by giving direction to the official respondents to allot 50% of seats exclusively for Service Candidates and the remaining 50% seats exclusively for Non-Service Candidates. Learned counsel also circulated certain other judgments for perusal. 6. The learned Advocate General appearing for the official respondents on the other hand submitted that the Prospectus issued for the year 2013-2014 was very clear, particularly clause 41 r/w 45, wherein it is clearly stated that Open Merit List seats can be availed by the Service as well as Non-Service Candidates, depending upon the merit and eight seats being available for Surgical Gastroenterology course (M.Ch.) for the year 2013-2014, first four seats were filled up based on merit alone, of which two non-service candidates and two service candidates were selected purely on the basis of marks secured viz., 84.25, 78.25, 76.75 and 74.75 and after filling up 50% Open category seats on merit basis, remaining 50% of seats numbering 4 seats were filled exclusively from among the Service Candidates. The learned Advocate General further submitted that the appellant having applied for admission under the Open Merit category and his marks being 72.75 when compared to 74.75 secured by the 4th respondent, the appellant cannot make any grievance for his non-selection, particularly when he has not chosen to challenge the Prospectus prescribing 50% of seats purely on merit basis irrespective of service or non-service category. The learned Advocate General also distinguished the judgment of the Supreme Court cited on the side of the appellant with reference to the Prospectus issued for the year 2013-2014, particularly Clause 41 and submitted that the appellant having participated in the selection process in terms of the Prospectus, without challenging the Prospectus before his non-selection, he is not entitled to canvas such a plea, as the same is hit by the principle of estoppel. The learned Advocate General relied on the decision reported in (2013) 11 SCC 309 (Ramesh Chandra Shah v. Anil Joshi) in support of his contentions. 7. We have considered the rival submissions made by the learned counsel for the appellant, learned Advocate General for respondents 1 and 2 and also the learned counsel appearing for respondents 3 to 6 and perused the selection list prepared for admission to M.Ch Courses 20132014. 8. The point arises for consideration in this writ appeal is as to whether the appellant is justified in challenging the selection of respondents 3 and 4 without challenging the Prospectus issued for admission to Higher Specialty Courses 2013-2014. 9. It is not in dispute that the Prospectus issued for selection are the rules of selection, which are bound to be followed by the second respondent and the terms and conditions mentioned therein are binding on the Selection Authority and the candidates. If there is any deviation from the rules already informed to the candidates, the same would be vitiated. The said principle is no longer res integra. 10. Insofar as the contention of the appellant that respondents 3 and 4 having applied as Service Candidates ought not to have been considered under Open category, it is to be noted that Clause 41 of the Prospectus is very clear that there are two categories, one Service category and another Open Merit category. Open Merit category is for both Service and Non-Service candidates. Thus, the respondents 3 and 4 are not only eligible to be considered under Open Merit category, but if they are not coming within the Open Merit Category, they can be considered under Service category also. As per the Prospectus issued for 2013-2014, there is no exclusive reservation of 50% seats for Non-Service candidates. 11. The Judgment cited by the learned counsel for the appellant reported in (2001) 2 SCC 538 (K.Duraisamy v. State of T.N.) is distinguishable on facts. As per the Prospectus issued for 2013-2014, there is no exclusive reservation of 50% seats for Non-Service candidates. 11. The Judgment cited by the learned counsel for the appellant reported in (2001) 2 SCC 538 (K.Duraisamy v. State of T.N.) is distinguishable on facts. In the said case, the Prospectus issued for the academic year 1999-2000 for admission to MDS Higher Specialty Course was put on issue, wherein 50% of seats were reserved exclusively in favour of in-service candidates on merit basis, which means service candidates are not eligible to be considered under non-service or private category and the candidate therein had challenged the Prospectus issued in not reserving 50% of seats exclusively for Non-service candidates. In the absence of such challenge in this case, the judgment relied on by the appellant cannot be applied to the facts of this case. 12. The appellant participated in the entrance examination and having been not selected, he had chosen to file the writ petition. The Honourable Supreme Court in the decision reported in (2013) 11 SCC 309 (Ramesh Chandra Shah v. Anil Joshi) in paragraph 24 held thus, "24. .............. by having taken part in the process of selection with full knowledge that the recruitment was being made under the General rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." The learned Advocate General is therefore justified in his submission on this aspect. 13. Further, the respondents 3 and 4 have been admitted to the Higher Specialty Course (M.Ch.) for the year 2013-2014 and they are undergoing the course as on date and they are more meritorious than the appellant as the marks secured by the appellant is 72.25, whereas the marks secured by respondents 3 and 4 are 78.25 and 74.75 respectively. 14. The consequential prayer of the appellant in the writ petition was to admit the appellant in the Higher Specialty Course for the academic year 2013-2014. The said academic year is also over as on today. The appellant also applied for admission for the year 2014-2015 and he is going to appear in the entrance examination to be held on 13.7.2014. The consequential prayer of the appellant in the writ petition was to admit the appellant in the Higher Specialty Course for the academic year 2013-2014. The said academic year is also over as on today. The appellant also applied for admission for the year 2014-2015 and he is going to appear in the entrance examination to be held on 13.7.2014. Hence the prayer in the writ petition cannot be entertained on any account at this stage. However, this order will not preclude the appellant from challenging the policy of the Government notified in the Prospectus issued for the year 2014-2015 and if any challenge is made, the said issue has to be decided on merits, without reference to the dismissal of this writ appeal. In fine, the writ appeal is dismissed with the above liberty. No costs. Connected miscellaneous petition is also dismissed.