IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 20.02.002
Coram:
THE HON'BLE MR. B. SUBHASHAN REDDY, CHIEF JUSTICE
and
THE HON'BLE MR. JUSTICE K.P. SIVASUBRAMANIAM
W.A. Nos. 1862 of 2001 and W.A. Nos. 1924 of 2001
W.A. No.1862 of 2001
Dr. R. Shakila ... Appellant
Vs.
1. Dr. S. Krishnaraj,
31, Perumal Koil Street,
PONDICHERRY - 605 001.
2. Dr. A. Satish Kumar,
No.546, Ashok Nagar, Lawspet,
PONDICHERRY - 605 001.
3. The Board of Governors of the
Mahatma Gandhi Dental College &
Hospital, rep. by its Chairman,
Chief Secretary to Govt.
Chief Secretariat, PONDICHERRY.
4. Mahatma Gandhi Dental College & Hospital
(Govt. of Pondicherry Institution)
rep. by its Principal,
Indira Nagar Complex, PONDICHERRY - 605 006.
5. Dr. K. Ramadoss
No.5, hukkaram Lane,
Manjakuppam,
CUDDALORE - 607 001. ... Respondents
W.A. No.1924 of 2001
1. The Board of Governors of the
Mahatma Gandhi Dental College &
Hospital, rep. by its Chairman,
Chief Secretary to Govt.
Chief Secretariat, PONDICHERRY.
2. Mahatma Gandhi Dental College & Hospital
(Govt. of Pondicherry Institution)
rep. by its Principal,
Indira Nagar Complex,
PONDICHERRY - 605 006. ... Appellant
Vs.
1. Dr. S. Krishnaraj,
31, Perumal Koil Street,
PONDICHERRY - 605 001.
2. Dr. A. Satish Kumar,
No.546, Ashok Nagar, Lawspet,
PONDICHERRY - 605 001.
3. Dr. K. Ramadoss
No.5, hukkaram Lane,
Manjakuppam,
CUDDALORE - 607 001.
4. Dr. R. Shakila,
65, Canteen Street,
Raghavan Oral Clinic,
PONDICHERRY. ... Respondents
Appeals against the common order of the learned single Judge dated
14.9.2001 passed in W.P. Nos.12618 of 2001.
! For Appellant in W.A. : Mr. N.R. Chandran,
1862 of 2001 and Respon- Sr. Counsel
dent 4 in W.A.No.1924/01
^ For Respondents 1 and 2 in : Mr. T.P. Manoharan
both the cases
For Respondents 3 and 4 in : Mr. T. Murugesan
W.A. No.1862 of 2001 and Govt. Pleader (Pondicherry)
Appellants in W.A. 1924 of
2001
For Respondent 5 in W.A. : Mr. K.R. Ramesh Kumar
No.1862 of 2001 and Respon-
dent 3 in W.A. No.1924 of
2001.
: J U D G M E N T
THE HONOURABLE THE CHIEF JUSTICE
These two Writ Appeal Nos.1862 and 1924 of 2001 are preferred against
the orders of the learned single Judge allowing the writ petition filed by the
respondents 1 and 2 herein. The matter relates to the admission to M.D.S.
course in Mahatma Gandhi Dental College and Hospital. Accepting the
contention of the writ petitioners that they are entitled to admission to the
said course from the waiting list, in which their names stood as Nos.1 and 2,
the learned single Judge allowed the writ petition.
2. In W.A. No.1862 of 2001, the affected candidate is the
appellant while in the other writ appeal, the Board of Governors of the
College as also the College, are the appellants. The parties are referred to
as arrayed in W.A. No.1862 of 2001.
3. For Academic Year 2001 - 2002, applications were called for, for
admission to M.D.S. course by notification dated 11.4.2001. Six seats were
notified and out of the same, three were set apart for Pondicherry domiciles,
two for All India quota and one for Non-Resident Indians (NRIs). In so far as
the first category is concerned, i.e. candidates of Pondicherry domicile,
entrance test was held and 64 candidates have appeared in the entrance
examination conducted on 20.6.2001. There was no entrance test contemplated
for categories 2 and 3. Results of the entrance examination were declared on
the very same day and three candidates in accordance with the roster i.e. OC,
BC/OBC and S.C. were admitted to M.D.S. course. There is no complaint with
regard to their admission. The complaint is with regard to admission of
appellant and fifth respondent. It is pertinent to mention that there is no
candidate sponsored from N.R.I. quota, i.e. category - 3 and from All India
quota, even though two persons have joined, one has opted out later and as
such there was one vacancy available in category - 2. The appellant and fifth
respondent were admitted against the two vacant seats.
4. The appellant and the fifth respondent are service candidates. They
have been appointed as Lecturers on 20.8.1993 and 11.2.1993 respectively.
They are holders of B.D.S. and not M.D.S. But they had to acquire M.D.S.
qualification because of the introduction of the said course from the academic
year 1999-2000 onwards. Sanctioned posts are six in number and the Board,
i.e. the third respondent, managing the fourth respondent College, which is
an autonomous institution established by the Government of Pondicherry, had
resolved to allocate two seats for the in-service candidates during the
academic years 1999-20 00 and 2000-2001. Pursuant to the same, in order of
seniority, Dr. B. Premalatha and Dr. Karthikshree V. Prasad had been
admitted into M.D.S. course for the academic year 1999-2000 and Dr. Latha
Ashokan and Dr. A. Ranukumari have been admitted for the academic year 2000
- 2 001. Next in line were the appellant and the fifth respondent. For this
academic year 2001 - 2002, there was no allocation of seats for service
candidates. While maintaining 50% quota for non-service candidates, two seats
were allotted towards All-India quota because of the Supreme Court directives.
One seat was earmarked for N.R.I. In fact the fifth respondent had filed W.P.
No.11290 of 2001 seeking allotment of seat from the quota of in-service
candidates as was done in the past. But by order dated 20.6.2001, the writ
petition was dismissed on the ground that the third respondent could formulate
a policy of its own and it was not imperative on the part of the third
respondent to allot to service candidates and no reservation can be given akin
to the one provided under Article 15 of Indian Constitution. However, because
of the resultant vacancies in categories 2 and 3 as mentioned above, the third
respondent had resolved in the meeting held on 27.6.2001 to admit the
appellant and the fifth respondent as inservice candidates. It is apt to
extract the same.
"The Board noted the writ petition filed in the High Court, Chennai, by Dr.
K. Ramadas, BDS Lecturer against the decision of not allotting MDS seats to
the Non-MDS Lecturers working in the College this year, and that the petition
was dismissed by the High Court with the observation that the petitioner has
no right to claim reservation for the in-service candidates.
The Board discussed the matter at length. The Board observed that
even though the in-service non-MDS Lecturers have no right to claim allotment
of MDS seat to them, in the previous two years, 2 seats each were allotted to
the in-service candidates. It was reported to the Board that 5 such non-MDS
Lecturers are still left. The Board observed that while these persons drew
the salary of Lecturers, they did not have the MDS qualification, which was an
anomaly. The Board, therefore, decided that the one unutilised All India seat
and the one seat earmarked for NRI's, which has also not been utilized, may be
allotted to the in-service non-MDS Lecturers, on the basis of their length of
service.
The Board also directed the Principal to inform the Director General
of Health Services, Govt. of India that the seat for NRIs, against which no
nomination has been received till now, is not available for NRIs any longer.
5. Questioning the same, W.P. No.12618 of 2001 was filed
contending that the moment vacancies arose in categories 2 and 3, they stood
surrendered to the State and should be added to category - 1 and as the
respondents 1 and 2 were waitlisted as against Nos.1 and 2, they were entitled
to be admitted as against the above two seats automatically. The respondents
1 and 2 very much banked upon the note appended to the merit list dated
22.6.2001, which reads,
"subject to change, if any increase in number of seats".
6. The learned single Judge accepted the contentions advanced on
behalf of the respondents 1 and 2 and has set aside the admissions of the
appellant and the fifth respondent. Hence, these two writ appeals.
7. At the time of admission, there was a stay granted pursuant to
which the appellant and the fifth respondent, who have been admitted to M.D.S.
First Year course on 2.7.2001, had been pursuing their studies.
8. Mr. N.R. Chandran, learned senior counsel appearing for the
appellant and Mr. T. Murugesan, learned Special Government Pleader (
Pondicherry) appearing for respondents 3 and 4 submit that the note appended
to the merit list, displayed on 22.6.2001, cannot be stretched to cover the
seats falling vacant under categories 2 and 3, that the respondents 1 and 2
cannot have any grievance on that score, that the respondents 3 and 4, acted
pursuant to the policy decision taken way back on 11.7.1996 and which was
acted upon for the academic years 1999 - 2000 and 2000 - 2001 and as two seats
were available from the categories 2 and 3, the appellant and the fifth
respondent were admitted as per the Resolution of the Board of Governors in
the meeting held on 27.6.2001 and that such a policy followed by the third
respondent cannot either be held unconstitutional or illegal.
9. Mr. K.R. Ramesh Kumar, learned counsel appearing for the
fifth respondent, has adopted the said arguments.
10. Countering the arguments advanced on behalf of the appellant
and the respondents 3 and 5, Mr. T.P. Manoharan, learned counsel appearing
for the respondents 1 and 2, has submitted that the vacancies unfilled from
categories 2 and 3 will revert back to category-1 and that the service
candidates are not entitled to tap any seats out of the unfilled from
categories 2 and 3 and they have to go only to waitlisted candidates in
accordance with their merit and not otherwise. He heavily relies upon the
note appended to the merit list dated 22.6.2001 . He further submits that the
appellant and the fifth respondent, even to secure admission as service
candidates under category - 1, had to compete with the candidates under
category - 1 by appearing in entrance examination and as they did not appear
in the entrance examination, by no stretch of imagination, they could be
admitted into M.D.S. course.
11. The question lies in a narrow compass and in fact, revolves
around the power of the third respondent to earmark seats for service
candidates and that too in the absence of the candidates from categories 2 and
3.
. 12. In our country, reservations, be it educational or employment,
are of several kinds. It may be communal, gender, institutional, residential,
ex-servicemen, physically handicapped and service personnel. Last category of
reservation, carved out for 'in-service candidates' is relevant for this
adjudication. Again, the reservation may be vertical or horizontal. But this
'in-service' reservation is vertical. Out of six seats available, three seats
have been set apart for non-service candidates and that suits the norm fixed
by judicial precedents. Out of remaining three, one was reserved for N.R.I.
for augmentation of financial resources, two were earmarked for All-India
merit basis. There is no such rule envisaged, by way of regulation or in
prospectus, providing the other seats meant for All-India category or N.R.I.,
for adding to the pool of non-service category quota of three seats in the
event of any seat/s falling vacant and left un-filled from All-India quota or
N.R.I. quota. The Note appended to the Merit List mentioned above has no
relevance in so far as the categories 2 and 3 are concerned. The same has to
be construed and restricted only to Category-1 and only if the seats in
Category-1 remain unfilled by reason of prior rank holders not joining or
vacating any seat later or in the event of increase of seats being made in
that regard. The reason for this is that the three seats for All-India and
N.R.I. students cannot be treated as communal reservation or other kinds of
reservations mentioned supra. Earmarking some seats for 'in-service'
candidates is not strictly called reservation. It is only a classification or
a source of admission/entry into educational institutions. The
classification/source of entry is broadly categorised as 'inservice' and
'non-service'. Both are not 'interchangeable'. Neither 'in-service'
candidates can claim from 'non-service' quota nor 'nonservice' quota
candidates can claim from 'in-service' quota seats. Like any communal
reservation, the 'in-service' candidates cannot claim admissions both on merit
and then from 50% service quota. There is no 'in-service' candidate selected
out of three seats earmarked for ' non-service' candidates. All the three
candidates selected in 'nonservice' quota are private students who passed out
B.D.S., participated in the entrance examination and secured admission on
merit by following the roster system for communal reservation. It is also not
as if the candidates from 'in-service' quota are not available so as to claim
pooling the seats from Categories 2 and 3 to Category-1. The respondents 3
and 4 are empowered to allot the vacant seats from Categories 2 and 3 to
'in-service' candidates. Like before a clear-cut quota would have been
allotted for 'in-service' candidates but to maintain 50% quota for
'non-service' candidates
and again to satisfy the All-India quota and N.R.I. quota, 'inservice'
candidate quota was not clearly earmarked when the prospectus was issued. As
already stated above, the necessity for All-India quota was to satisfy the
dicta laid down by the Supreme Court and so far as the N.R.I. quota is
concerned, it was for augmentation of financial resources. If the vacant
seats in all-India quota and N.R.I. quota were not filled up by 'in-service'
candidates, may be it was possible for the non-service candidates to claim the
said seats as the strength of six seats cannot be allowed to go waste. But
here the 'inservice' candidates were available and in fact, they were already
arranged in order of merit to undergo Postgraduate Course in M.D.S. Due to
paucity of seats, no prior reservation was made for 'in-service' candidates
for the academic year 2001-2002 and they were not so earmarked in the
prospectus but having regard to the availability of the vacancies in
Categories 2 and 3 later, the respondents 3 and 4 had rightly granted
admissions to the appellant and the fifth respondent herein. Further, it is
the choice of State / University to conduct entrance examination for the
'in-service' candidates also but there cannot be any compulsion to conduct
test for in-service candidates. There is no warrant to say that 'in-service'
candidates should perforce appear in entrance test even claiming the
'in-service' quota. The above conclusions of ours are fortified by the
judicial precedents stated infra.
13. In (i) STATE OF TAMIL NADU v. T. DHILIP KUMAR AND OTHERS
(1995 (5 ) SCALE 208), the Supreme Court, while upholding the reservation for
'in-service' candidates, held that such reservation should not exceed 50% of
the seats. Similar is the view taken by the Supreme Court in (ii) K.
DURAISAMY v. STATE OF TAMIL NADU (JUDGMENT TODAY 2001 (2) S.C. 48). In K.
DURAISAMY's case (ii supra), the Supreme Court has laid down the broad
principles explaining the nature of reservation for 'in-service' candidates
and holding that reservation for 'in-service' candidates is not akin to
communal reservation or other kinds of reservations, which are traced to
Article 15 (4) of Indian Constitution and that reservation for 'in-service'
candidates is a source of admission to medical college, the other source being
reservation for 'non-service' candidates. The Supreme Court further held that
the principles underlying the communal reservation, where the meritorious
candidates can compete for general seats, keeping the reserved seats
untouched, are inapplicable in the case of reservation for 'in-service'
candidates and that neither 'non-service' candidates can opt for the seats
reserved for 'in-service' candidates nor can 'in-service' candidates claim the
seats earmarked for the 'non-service' candidates. It was held in paragraph 11
thereof
" On a consideration of the reasoning of the Full Bench as also the
construction placed upon the Government Order and the Prospectus, we are of
the view that the State Government in the undoubted exercise of its power, has
rightly decided, as a matter of policy, so far as the admissions to
super-speciality and Post-graduate Diploma/Degree/M.D.S.. courses for the
academic session 1999 - 2000 are concerned, to have a scheme or pattern of two
sources of candidates based upon a broad classification into two categories
i.e. in-service candidates and non-service or private candidates with each
one of them allocated exclusively for their own respective category of
candidates fifty percent of the seats, the ultimate selection for admission
depending upon the inter se merit performance amongst their own category of
candidates......"
The Supreme Court further held,
"12.....Though the prescription of a quota may involve in a general sense
reservation in favour of the broad class or category, in whose favour, a quota
is fixed, the concepts of reservation and fixation of quota, drastically
differ in their purport and content as well as the object. Fixation of a
quota in a given case cannot be said to be the same as a mere reservation and
whenever a quota is fixed or provided for one or more of the classified group
or category, the candidates falling in or answering the description of
different classified groups in whose favour a respective quota is fixed, have
to confine their respective claims against the quota fixed for each of such
category, with no one in one category having any right to seek a claim against
the quota earmarked for the other class or category......."
In (iii) PRE-P.G. MEDICAL SANGARSH COMMITTEE AND ANOTHER v. DR. BAJRANG
SONI AND OTHERS (2001 (5) SCALE 205), similar question arose with regard to
the validity of reserving 50% for 'in-service' candidates. Quoting the
judgments in T. DHILIPKUMAR's case and K. DORAISWAMY's case (i and ii supra)
with approval, the Supreme Court held,
" 8.....That apart, as rightly pointed in one of the judgments of this Court
noticed above, mere theoretical excellence or merit alone is no sufficient
indicia of the qualitative merits of the candidates in the field of actual
practice and application. The doctors, who are in-service candidates in
various medical institutions, run and maintained by the Government or
Government Departments, have wide area and horizon of an exposure on the
practical side and they may not have the required extra time to keep
themselves afresh on the theoretical side like an open candidate, who may have
sufficient time at his disposal to plod through books. The in-service
candidates, in contrast to the fresh or open candidates, have to spend much of
their time on attending and treating the patients in the Hospitals they serve
gaining excellence on the practical side and, in our view, they would
constitute a distinct class by themselves to be given a special treatment and
no grievance can be made out on the ground that minimum eligibility marks for
their selection in respect of seats earmarked for them should also be the same
as that of the fresh or open candidates. We could see no discrimination or
arbitrariness involved in the special provision made to meet a just and
appropriate need in public interest."
In (iv) DR. NARAYAN SHARMA AND ANOTHER v. DR. PANKAJ KR. LEHKAR AND OTHERS
(2000 (1) S.C.C. 44), the Supreme Court was considering, among other things,
the propositions as to whether the reservation in favour of teachers was valid
and also whether there should be entrance examination. The Supreme Court held
that there cannot be any doubt that the teachers formed a class by themselves
and the classification is based on intelligible differentia having a rational
nexus with the object of the Rule. Dealing with the exemption from entrance
examination, it was held that as regards the teachers, there is no need for
them to participate in the entrance examination as they have been constantly
in touch with the subject/ discipline, for which reservation is made.
14. The two points viz. validity of allotting quota of two seats
to 'in-service' candidates i.e. the appellant and the fifth respondent and
also admitting them into M.D.S. course without conducting any entrance
examination for them, are fully justified because of the above legal
propositions laid down by the Supreme Court. In view of what is stated supra,
we set aside the order passed by the learned single Judge. The writ appeals
are allowed. No costs. Consequently, C.M.P. Nos.15254 and 15589 of 2001 are
closed.
(B.S.R., CJ) (K.P.S., J)
bh/
20.02.2002
LR COPIES AND INTERNET TO BE MARKED
To
1. Dr. S. Krishnaraj,
31, Perumal Koil Street,
PONDICHERRY - 605 001.
2. Dr. A. Satish Kumar,
No.546, Ashok Nagar, Lawspet,
PONDICHERRY - 605 001.
3. The Board of Governors of the
Mahatma Gandhi Dental College &
Hospital, rep. by its Chairman,
Chief Secretary to Govt.
Chief Secretariat, PONDICHERRY.
4. Mahatma Gandhi Dental College & Hospital
(Govt. of Pondicherry Institution)
rep. by its Principal,
Indira Nagar Complex, PONDICHERRY - 605 006.
5. Dr. K. Ramadoss
No.5, hukkaram Lane,
Manjakuppam,
CUDDALORE - 607 001.
6. Dr. R. Shakila,
65, Canteen Street,
Raghavan Oral Clinic,PONDICHERRY.
