Partly allowed

Dr.M.Rajiv v. The Secretary

Madras HC20 Dec 2016WP/25277/2016

Case brief

AI extract

What is this about?

This common order disposed of five writ petitions challenging the allotment of seats in the M.Ch. Surgical Oncology Higher Specialty Course. The Court held that a specific petitioner, Dr. M.Rajiv, who passed a competitive examination, was regularized, completed two years of service, and secured the highest marks, qualifies as a service candidate. Relying on Supreme Court precedents regarding lapse

What did the court decide?

Writ Petition 25277 of 2016 allowed; Dr. M.Rajiv declared as Service Candidate and granted admission to M.Ch. Surgical Oncology. Writ Petitions 27096, 25828, and 25829 dismissed.

Dr.M.Rajiv Vs The Secretary — Pension and Retirement Benefits | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATE: 20.12.2016

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CORAM

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THE HONOURABLE MR.JUSTICE B.RAJENDRAN

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W.P.No.25277, 27096, 25828 & 25829 of 2016

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and

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WMP.Nos.21636, 23270, 23271, 22122, 22123 of 2016

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1.Dr.M.Rajiv .. Petitioner in W.P.25277/2016 & R6 in W.P.No.27096/2016 2.Dr.S.Arun Victor Jebasingh .. Petitioner in W.P.27096/2016, Impleaded as R3 as per Order dt.16.09.2016 in WMP.23166/16 in WP.25277/2016 and impleaded as R6 as per order dt.16.09.2016 in WMP.25825/2016 in WP.25829/2016

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3.Dr.K.Dalton Jebaraj .. Petitioner in W.P.25828/2016 4.Dr.S.Anbhazhagan .. Petitioner in W.P.25829/2016 and impleaded as R4 as per order dt.16.09.2016 in WMP.25611/2016 in WP.No.25277/2016

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Vs.

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1.The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, R1 in WP.25277/2016 Chennai-10. R4 in WP 27096,25828 and 25829/16

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2.The Secretary, Medical Council of India, Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi-110 077. R2 in WP.25277/2016 and R5 in WP.27096/2016

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3.The State of Tamil Nadu rep. by its Secretary Department of Health & Family Welfare, Fort St. George,

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https://hcservices.ecourts.gov.in/hcservices/

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Chennai-600 010. ... Respondent No.1in W.P.27096, 25828, 25829/2016 4.The Director of Medical Education, Kilpauk, Chennai-10. .. Respondent No.2in W.P.27096, 25828, 25829/2016 5.The Director of Public Health & Preventive Medicine, Teynampet, Chennai-6 Respondent No.3in W.P.27096, 25828, 25829/2016 6.The Member Secretary, Medical Services Recruitment Board, DMS Campus, Anna Salai, Teynampet, Chennai-600 006. Respondent No.5 in W.P.25828 & 25829/2016

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Prayer in W.P.No.25277 of 2016: Writ Petition filed under Article 226 of the Constitution of India, praying for a writ of Mandamus, directing the respondent to declare the petitioner as Service Candidate in the Provisional Merit List for Eligible Candidates Higher Specialty for the academic year 2016-17 session Specialty:28-Surgical Oncology, based upon the representation dated 15.07.2016.

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Prayer in W.P.No.27096 of 2016: Writ Petition filed under Article 226 of the Constitution of India, praying for a writ of Certiorarified Mandamus, calling for the records relating to the impugned allotment list of candidates for M.Ch Surgical Oncology Higher Speciality Course for the academic year 2016-2017 in Tamil Nadu published on 26.07.2016 by the fourth respondent Selection Committee and quash the same insofar as it treats the sixth respondent as a candidate under Service Category and the consequent allotment of the second seat under Service Category to the sixth respondent and further direct the fourth respondent herein to give admission/allotment to the petitioner under Service category in M.Ch Surgical Oncology Higher Speciality Course for the academic year 2016-2017 in the second seat under Service Category.

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Prayer in W.P.No.25828 of 2016: Writ Petition filed under Article 226 of the Constitution of India, praying for a writ of Mandamus, directing the respondents to consider the petitioner for selection and admission to Higher Speciality Course 20162017 under service category based on the selection to the post of Assistant Surgeon through Medical Services Recruitment Board,

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https://hcservices.ecourts.gov.in/hcservices/

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2013 and consequently, grant admission to the petitioner in Higher Speciality Course 2016-2017 session in the Speciality of M.Ch., (Urology/Surgical Gastroenterology).

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Prayer in W.P.No.25829 of 2016: Writ Petition filed under Article 226 of the Constitution of India, praying for a writ of Mandamus, directing the respondents to consider the petitioner for selection and admission to Higher Speciality Course 20162017 under service category based on the selection to the post of Assistant Surgeon through Medical Services Recruitment Board, 2013 and consequently, grant admission to the petitioner in Higher Speciality Course 2016-2017 session in the Speciality of M.Ch., (Surgical Oncology).

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For Petitioner in WP.25277/2016 : Mr. Navaneethakrishnan
& R6 in WP.27096/2016 Senior counsel
of Sristed by
Mr. N. Saravanya
for Mr. R. Aneesan
For R5 in WP.25828/2016 : Mr. A. Vivek
R5 in WP.25829/2016
R2 in WP.25277/2016 : Mr. V.P. Raman
R5 in WP.270968/2016
R3 in WP.25277/2016 : Mr. Isaac Mohanlal
and Corporation WP.27096/16 Sr. Counsel
and R6 in WP.25829/2016 for Mr. P. Godsarswaminam
R4 in WP.25277/2016 : Mr. AR.L. Sundareran
Senior Counsel
and for petitioner in
WP.25828/2016 for Mr. G. Sankaran
for Petitioner in WP.25829/16
R1 in WP.25277/2016
R1 to R4 in WP.27096/2016 Mr. AN. Thambidurai
R1 to R4 in WP.25828/2016
R1 to R4 in WP.25829/2016

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C O M M O N O R D E R

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These writ petitions have been filed by the petitioners for the relief stated in the above prayers. Since the matters pertain to similar issue, they have disposed of by way of a common order.

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https://hcservices.ecourts.gov.in/hcservices/

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2.The germane facts which led to the filing of the present writ petitions are as follows:

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a)W.P.No.25277 of 2016:

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i)The petitioner/Dr.M.Rajiv has passed MBBS in the year 2010 and joined MS (General Surgery) Course at Thanjavur Medical College, Thanjavur under All India Quota in the year 2011 and was selected under Rule 10(a)(i) of Tamil Nadu State and Subordinate Service Rules (herein after refer to as 'the Rules') by the Medical Services Recruitment Board (herein after referred as MSRB) as per results dated 12.06.2013 in the competitive examination. During certificates verification, he informed that he was undergoing MS (General Surgery) course and on receiving an undertaking from him, the authorities informed to join the service after completion of the said course. He completed the said course in the year 2014 as First Rank holder in the Tamil Nadu Dr.M.G.R. Medical University and was awarded three gold medals in the said course. He joined the service on 26.06.2014 at Government Primary Health Centre, Saliyamangalam, Thanjavur Health Unit District as per proceedings dated 10.06.2014. On completion of the course, the authorities of Thanjavur Medical College refused to hand over the original certificates of the petitioner. In view of the said aspect, the petitioner and others moved a petition before this Court in W.P.Nos.15886 to 15894 of 2014, wherein, this Court by order dated 19.06.2014, had directed the second respondent therein to return the certificates to the petitioner.

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ii)The grievance of the petitioner is that he had applied for three years Higher Speciality Course No.28: Surgical Oncology on 27.06.2016 through the Dean, Thanjavur Medical College as service candidate as per clause 21 of the Prospectus of Government Medical Colleges for admission to three year Higher Speciality Courses in Tamil Nadu as per G.O.(D) No.772, Health and Family Welfare (ME) Department dated 16.06.2016, 2016-2017 Session and on account of the non holding of Special Qualifying Examination in terms of the proceedings of the second respondent dated 29.03.2016 in R.No.96989/E5/2014/A3, he is treated as a Non Service Candidate and therefore, he has come forward with the present petition for the above stated relief.

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b)W.P.No.27096/2016

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i)The petitioner/Dr.S.Arun Victor Jebasingh, joined Tamil Nadu Medical Service as Assistant Surgeon in Government Hospital, Sattur on 30.06.2011 under 10(a)(i) of the Rules and thereafter, he was transferred to Government Headquarters Hospital, Virudhunagar as Assistant Surgeon and was subsequently transferred to Government Medical College, Government Omanthurar Estate, Chennai as Junior Resident in General Surgery and thereafter, he was transferred to Rajiv Gandhi Government General Hospital/MMC, Chennai as Assistant Professor in General

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https://hcservices.ecourts.gov.in/hcservices/

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Surgery and he is continuing there now. He appeared for the Special Qualifying Examination (competitive written examination) conducted by TNPSC for appointment by Direct Recruitment to the post of Assistant Surgeon in the year 2013 and passed the same and his service was regularized with effect from his date of appointment ie., 30.06.2011. On the notification of the Government dated 16.06.2016, he applied for three years Higher Speciality Courses, M.Ch., Surgical Oncology on 29.06.2016 under Open and Service categories. As per the prospectus, issued based on the G.O.(D) No.772, Health and Family Welfare (ME) Department dated 16.06.2016, 50% of the seats in each Speciality and in each college are reserved for service candidates in addition to those service candidates selected in Open category. As per the prospectus, two Merit Lists namely, Open Merit List and Service Merit List and it has been clearly stated that Service Merit List will be prepared by computing entrance examination marks and experience marks, which will be calculated to a maximum of 100 [entrance examination marks (90) + experience marks (10)] and Service Merit List will be published separately. In the prospectus, it was clearly stated that the Medical Officers who are selected by TNPSC/MSRB through competitive written examination and appointed in Tamil Nadu Medical Service on regular basis and put in a minimum of two years service are eligible to apply and Contract Medical Consultant and 10(a)(i) candidates are eligible only to apply as private candidates. Both the Provisional Merit List for Eligible Candidates and Service Candidates were published on 13.07.2016, wherein, in the Eligible Provisional List, he was placed in 13^th rank and Dr.M.Rajiv/R6 stood 4^th rank and in the Service Merit List, he was placed on 4^th rank.

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ii)The grievance of the petitioner is that he is the eligible Service Candidate and also ranked as No.4 in the Service Merit List, whereas, the sixth respondent/Dr.M.Rajiv herein who is only a private candidate and as per the order of this Court dated 22.07.2016, he has participated in the selection process under Service Category taking into account, his service rendered under 10(a)(i) of the Rules which is against the clause as per the Prospectus for admission to Higher Specialty Course 2016-17. The Selection Committee published the list of candidates who are allotted seats in various disciplines for DM/M.Ch courses on 26.07.2016 wherein, the sixth respondent/Dr.M.Rajiv's name was placed in the fourth seat for M.Ch., surgical Oncology in Kilpauk Medical College, Chennai. He further stated that the sixth respondent/Dr.Rajiv waited till 13.07.2016 on which date the Provisional Merit List for eligible candidates was published and thereafter, approached this Court to treat him as a Service Candidate, taking into account his service under 10(a)(i) of the Rules, due to which, the petitioner is denied the second seat under Service Category

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https://hcservices.ecourts.gov.in/hcservices/

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(overall fourth seat) due to the allotment of the sixth respondent/Dr.M.Rajiv under Service quota. Therefore, he has approached this Court with the prayer stated above.

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c)W.P.No.25828 & 25829 of 2016

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i)The petitioner in both the petitions, after passing MBBS, got admission to M.S.(General Surgery) Post Graduate as a Non Service Candidate in the year 2010 and successfully completed the same in the year 2013 and also got selected and appointed as Non Service PG Candidate for the Speciality of General Surgery for the year 2013 in a sanctioned post in relaxation of Section 10(a)(i) of the Rules and posted as Assistant Surgeon at Government Hospital, Tiruchendur and Virudhachaalm, Cuddalore District, respectively vide proceedings of the Director of Public Health and Preventive Medicine, Chennai-6, dated 22.04.2013 and joined the said post also. The petitioners had also applied for regular appointment to the post of Assistant Surgeon through Medical Services Recruitment Board (MSRB) and also participated in the written examination held on 19.05.2013 and the results were declared on 12.06.2013 and as per the results declared, their names were included in the Selection List of Assistant Surgeon (General Surgery) and also participated in the Certificate verification on 28.06.2013 and thereafter, not issued with any orders of appointment and on enquiry, they were informed that since they continues in service as Assistant Surgeon, no fresh orders would be passed.

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ii)The grievance expressed by the petitioners is that they applied for admission to three years Higher Speciality Course under the Service Category. However, their candidatures under the said category is not considered for the reason that they still being considered as a Non Service candidates and therefore, the petitioners are constrained to file the present writ petitions.

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3.In response to the petitions filed by the petitioners, the respective official respondents filed their counter defending their case and also counter affidavit was filed by Dr.M.Rajiv in W.P.No.27096 of 2016 attacking his opponent Dr.S.Arun Victor Jebasingh. They are as follows:

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i)W.P.No.25277 of 2016

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According to the official respondent, the petitioner has not enclosed any appointment order issued either by TNPSC/MSRB for regular service and he has only applied for the said course as a Non Service candidate. It is stated that as per Clause 9 and 21 (ii)(a) of the Prospectus for admission to Higher Specialty Course 2016-17, he could not be treated as a Service Candidate. Apart from that, the petitioner/Dr.M.Rajiv has stated that he was selected by MSRB in the year 2013 and joined service at

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https://hcservices.ecourts.gov.in/hcservices/

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Government Primary Health Centre, Saliamangalam, Thanjavur but he has not clearly stated the said appointment was either made by MSRB or the Director of Public Health and Preventive Medicine. It is further stated that to substantiate his claim he had not produced the copy of undertaking furnished by him to MSRB and the appointment and posting order issued by MSRB. Hence, the stand taken by the Selection Committee to treat the petitioner as a Non Service Candidate based on the Prospectus is correct and only as per the order of this Court dated 22.07.2016 he was permitted to participate in the counselling held on 26.07.2016 and as directed by this Court, the result of the said admission, was produced in a sealed cover before this Court.

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ii)W.P.No.27096 of 2016

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a)The plea taken on behalf of the official respondents 1, 2 & 4 is that the petitioner has applied for admission to M.Ch., Surgical Oncology Course 2016-17 session under Service Category and he has secured 56.75 marks and was placed in 13^th rank in the Merit List for the said course. According to them, there are four seats to the said course are available at Kilpauk Medical College, Chennai. As per Clause 45(b) of the Prospectus of the Admission to Higher Speciality Course 2016-17 session, 50% of seats in each Specialty in each college are allotted to Service candidates and 50% of seats are allotted to candidates under Open as well as Service quota. Out of 4 seats, 2 seats are available to Service Candidates and remaining are to the Eligible Meritorious Open/Service Candidates. As per the interim order granted by this Court dated 22.07.2016, the petitioner/Dr.M.Rajiv in W.P.No.25277 of 2016 who is the sixth respondent in this petition, was permitted to participate in the counselling session under Service quota but as per the Prospectus he could not be considered under Service Quota. b)Defence by Dr.M.Rajiv/R6

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As per the order of this Court dated 22.07.2016, he was permitted to participate in the counselling under Service Quota and the result of the counselling on 26.07.2016 was kept under a sealed cover as per the direction of this court. In the website, his name was included as allotted candidate for the M.Ch., Surgical Oncology, to Kilpauk Medical College, Chennai and he has not received any allotment order from the Secretary, Selection Committee, Kilpauk-10. Furthermore, he would submit that the petitioner herein after passing the Special Qualifying Examination for appointment only his service was regularized but he was not appointed after passing competitive examination on regular basis and therefore, he cannot seek allotment order for the said seat as Service candidate. The petitioner had secured 13th rank in the Provisional List and had obtained 51.75 out of 90 marks and 5 out of 10 marks which comes to 56.75 out of total marks of 100 but he/Dr.M.Rajiv had secured 4^th rank and obtained 58.50 out of 90 marks + 2 out of 10 marks which sums to 60.50

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https://hcservices.ecourts.gov.in/hcservices/

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out of total marks 100. The plea taken by Dr.Rajiv is that as per clause 21(ii)(a) of the Prospectus, he had passed MSRB competitive examination and completed two years of service and thus, he should be considered as service candidate and to be alloted the said course as he has secured 4^th rank in Provisional Merit List and 3rd rank in the Service Merit List and contended that the petitioner is not eligible for the relief sought for, as he had passed only qualifying examination but not the competitive examination and also, he has got only 13th rank in Provisional Merit List.

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iii)W.P.Nos.24828 & 24829 of 2016

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Though the respondents 1 to 4 admits the qualification of the petitioners and their compulsory service of two years under 10(i)(a) of the Rules, they denied the fact that the petitioners are not Service Candidates on the ground that even though they have stated that they have been selected by the MSRB for the post of Assistant Surgeon (Speciality), they did not produce the original certificates for verification of the genuineness and they were not called for counselling for selection for the place of posting. Furthermore, they have not enclosed any appointment order issued either by TNPSC/MSRB for regular service. They have also only applied for the said course as a Non Service Candidates. As per Clauses 9 and 21(ii)(a) of the Prospectus, they are only to be considered as Private Candidates. In the light of the order passed by this Court dated 25.07.2016, they are permitted to participate in the counselling process under Service quota. Inspite of the same, their names have not been reached the zone of consideration for giving any Higher Speciality Courses. MSRB have not declared their names for selection for the post of Assistant Surgeon and therefore, without declaring them by the Recruiting Agency, they cannot be considered as Service Candidates.

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4.Heard the learned counsel for the parties and perused the materials available on record.

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5.The main ground of attack by the learned counsels for the parties is that the petitioners have served as Assistant Surgeons under 10(a)(i) of the Rules and completed two years or three years of service in the Government but yet they have not been treated as Service candidates. As per the Selection process, 50% of seats are eligible to be granted to Service candidates and 50% for Regular candidates and if the petitioners are treated as Service candidates they would be eligible to get the seat.

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6.The petitioner/Dr.S.Arun Victor Jebasingh in W.P.27906 of 2016, would contend that Dr.M.Rajiv, is not an eligible

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candidate and he is only a private candidate and only pursuant to the interim order granted by this Court dated 22.07.2016, he was permitted to attend the counselling under service quota and that itself shows that he has no locus standi to admission and also cited that as per the Clauses 9 and 21(ii)(a) of the Prospectus of Admission, he is only to be considered as a private candidate and contended that Dr.M.Rajiv should not be treated as Service Candidate which would affect his candidature of selection under Service quota.

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7.In fact, they have also produced the Provisional Merit
List for eligibility of the candidates in respect of Surgical
Oncology wherein, Service candidate and Other candidates are
mentioned. They have also produced the comparative table in
respect of Dr.M.Rajiv, Dr.Arun Victor Jebasingh and
Dr.S.Anbalagan and the same is extracted hereunder for reference:
S Remarks Dr.M.Rajiv Dr.Arun Dr.S.Anbazhagan
. victor
N Jebasingh
o
.
1 Year of 2010 2007 2008
completion of
MBBS
2 Year of 2014 selected 2011 2013 Non Service
completion of through All
PG Course India Quota,
secured 3 Gold
Medals
3 Year of 2013 2013 2013
passing of
special
examination
4 Nature of MSRB Special MSRB competitive
examination competitive qualifying examination
examination examination 19.05.2013
19.05.2013 (TNPSC)
22.09.2013
5 Service/Non Service Non Service Non Service
Service
candidate
6 Year of Transferred to July, 2013 May, 2015
completion of Thanjavur
2 year Medical
Service college,
26.06.2016

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https://hcservices.ecourts.gov.in/hcservices/

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S Remarks Dr.M.Rajiv Dr.Arun Dr.S.Anbazhagan
. victor
N Jebasingh
o
.
7 Appointment 10(a)(i) 10(a)(i), 10(a)(i)
under TNPSC
regularized
later
--- ---
8 Application The Dean,
filed for Thanjavur
M.Ch., Medical
Surgical College, as in
Oncology service under
course TN Government
through
8 Rank held in 4 13 6 but previous
entrance year 2015-2016,
he attended the
Exam for the same
course and
secured 49 th
rank, in that
result also, he
was declared as
non service
candidate, even
after completing
2 years of
service.
9 Marks 58.50 out of 90 51.75 out of
obtained out + 2 out of 10 = 90 + 5 out of
of 100 (90 60.50 10 = 56.75
for entrance
+ 10 for
service)

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8.On perusal of the Higher Speciality 2016-17 Session, Provisional Merit List for Eligible Candidates, would reveal that the petitioner/Dr.M.Rajiv in W.P.25277 of 2016 is ranked as No.4 but he is treated only as a Non Service Candidate and he had

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secured 60.50% marks. The petitioner/Dr.S.Anbazhagan in W.P.25829 of 2016, who is treated as Non Service Candidate had obtained 58.50 and stood rank No.6 in the Merit list and Dr.S.Arun Victor Jebasingh, is treated as a Service Candidate had only secured 56.75% marks and reached only 13^th rank in the

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https://hcservices.ecourts.gov.in/hcservices/

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Merit List. Whereas, the petitioner/Dr.K.Dalton Jebaraj in W.P.No.25828 of 2016 name did not find a place in the Provisional Merit List upto 30 th place produced before me. Therefore, the point which arises for consideration among the four candidates in respect of eligibility to get the seat of Higher Speciality Course for 2016-2017 Session under the category of service.

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9.On a careful perusal of the entire records would clearly reveal that on merit basis, among the petitioners the petitioner in W.P.No.25277/2016/Dr.M.Rajiv stands top not only in the marks but also in respect of his service i.e., completion of two years. In addition to that it is very pertinent to note that the petitioner/Dr.M.Rajiv was selected for PG (General Surgery) Course under All India Quota and even in the said PG Course, he was awarded three Gold Medals and therefore, the bond system will not apply to him as per the judgment of this Court and it is also to be noted that he along with others had filed an earlier petition in W.P.Nos.15886 to 15894 of 2014, to return the original certificate and the same was directed to be returned to him pursuant to an earlier Division Bench of this Court, wherein I had also followed the same in my order dated 19.06.2014. Apart from that, he has also passed Special Qualifying Examination which is conducted in the year 2013.

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10.The arguments advanced in respect of the other petitioners in W.P.No.25828 and 25829 of 2016 is that due to non conducting of special qualifying examination for the past two years, they cannot be found fault and therefore, they should be treated as Service Candidates. They have even stated that MSRB conducted test and have been selected in that but no orders have been passed and on enquiry, they have been informed that since they are continuing service, no separate order has been given to them. Whereas the stand taken on behalf of the official respondents is that during verification, they have not produced the original certificates or any document in regard to their original appointment to show their genuineness and therefore, as rightly contended in the counter of the respondents that their candidature cannot be considered under Service Category and hence, they have not been shown as Service candidates and their marks are also much less than other competitors inspite of the interim order passed by this Court as stated above.

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11.So far as the cases of Dr.M.Rajiv and Dr.S.Arun Victor Jebasingh are concerned, the only argument was focused is that Dr.S.Arun Victor Jebasingh had passed MBBS in the year 2007 and completed his PG Course in the year 2011 and passed the Special Qualifying Examination conducted by the MSRB/TNPSC on 22.09.2013 but Dr.M.Rajiv had completed the said MSRB Special Qualifying Competitive Examination on 19.05.2013 itself. In respect of

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https://hcservices.ecourts.gov.in/hcservices/

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Dr.S.Anbazhagan and Dr.K.Daltan Jebaraj they have applied only as Non Service Candidates. According to Dr.Arun Victor Jebasingh, though his service was regularised after 10(a)(i09 of the Rules, and completed two years of service in July 2013 itself but he remains at Rank No.13 in the Provisional Merit List.

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12.It is brought to the notice of this Court that the said course has been commenced in the month of August 2016. Fortunately, the petitioner/Dr.M.Rajiv in W.P.No.25277 of 2016 has been granted an interim order by this Court on 22.07.2016, wherein, a direction was given to the authorities concerned that the Selection should be subject to the disposal of the Writ Petition and also directed them not to publish the result and the same should be kept in a sealed cover and produced before this Court on the next date of hearing and the respondents have also complied with the direction of this Court.

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13.This Court is of the view that taking into consideration of the selection process marks overall in the entrance and experience marks, Dr.M.Rajiv alone ranks top and the petitioner in W.P.No.27906 of 2016 has clearly admitted that Dr.M.Rajiv has been alloted the seat under Service Quota and his rank is 4 by the Kilpauk Medical College, Chennai and challenging the same, he has come forward with this petition to quash the allotment made by the concerned authorities. The question of delay will not arise in case of grant of seat to Dr.M.Rajiv as the Course has commenced in the month of August 2016 itself. In support of this, it is very relevant to worth recall the order passed by the Delhi High Court on 05.04.2016 in (Parul Kodan vs. Union of India and another). In the said the Delhi High Court dealt with grant of admission to super speciality course under DM (Infectious Disease) course. In that case, the Delhi High Court, following the Division Bench order of the Delhi High Court in Rajnish Kumar vs. Guru Gobind Singh Indraprasatha University and others, 2014 SCC Online Del.6468 wherein it was held as under:-

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"8. This Court also finds it perplexing that though a vacancy had occurred before the cut off date had expired, the college and the University had not taken any steps to fill the same. Agreed that the vacancy arose at the last minute, but this Court is of the view that the respondent owed a duty to have put in place a mechanism to ensure that such a valuable seat does not go waste. Consequently, in the opinion of this Court, there has been a lapse on the part of the respondents in filling up a vacancy in a super specialty course.

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This Court is also of the view that a valuable seat in a super speciality course cannot be allowed to go

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waste for the next three years merely for the reason that about two months have elapsed after the cut off date. In fact the Division Bench of this Court in Manoj Kumar Dhaka v. Union of India, LPA No. 763/2012, in similar circumstances, has after considering the entire law on the subject held as under:-

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"16. The present is an equally hard case. The Super Specialty Course of DM (Cardiology) in PGIMER is not only prestigious but highly competitive. To secure admission therein is no mean task. The need of the country and the public at large for the doctors with said Super Specialty cannot be over emphasized. The course, we are informed is of three years duration out of which three months are admittedly over.

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What falls for consideration is as to whether the aforesaid can fall in the category of rarest of rare cases as spelled out by the Supreme Court.

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The appellant, for the delay, cannot be faulted with in any manner whatsoever. Though the learned Single Judge has observed that the appellant made out a wrong case than what emerged before the Court but the appellant could not be expected to have knowledge thereof. Though on the basis of the infrastructure available in the Department of Cardiology in PGIMER, four seats ought to have been allocated by GGSIPU, but GGSIPU on a wrong interpretation of Regulation 12(4) supra which was supported by MCI also before this Bench till 23rd November, 2012, allocated only three seats. We are unable to digest that such valuable seat should be allowed to go waste for the next three years merely for the reason of three months having elapsed.

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..........The loss of three months in gaining hands-on practical-experience, we are sure, can always be compensated by extra hours put in by the candidate. It cannot be lost sight of that the appellant approached this Court without any delay and the writ petition was drafted on 5th July, 2012 itself and filed immediately thereafter, i.e. well before the last date prescribed for admission. Unfortunately the correct facts came to be revealed only through recording of the statement of the Registrar of

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¶80

PGIMER by the learned Single Judge. Had the view, as we have taken, been taken immediately, the appellant would have been admitted well within the prescribed time.

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We are further of the opinion that the decision of the GGSIPU to reject the request of PGIMER for the four seats in terms of amended Regulation 12(4) was wrong. Though PGIMER did not pursue the case but it cannot be lost sight of that it is a Government Institute with none being personally interested and it is ultimately the students who are the beneficiary of the courses which are being imparted and in our view they would have a cause of action against the wrongful denial/reduction of seats.

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We are thus of the opinion that the facts of the present case justify admission at this stage." (emphasis supplied)

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14.It is to be taken into account that these Super Speciality Courses are not teached in the class rooms but they have been trained practically in the Hospitals. Hence, it is not a bar for the authorities concerned for entertaining the petitioner in W.P.No.25277 of 2016 for admission for the said Course in the month of December because one seat cannot go waste that too for a meritorious candidate whose life time goal and he should not be denied with such an opportunity taking into note that he has been successful in his career from his studies itself and therefore, in overall consideration of the facts of his case, we have dehorse the bond system.

¶84

15.Moreover, it is also worth to recall and recollects the order dated 17.11.2015 of the Punjab and Haryana High Court at Chandigarh passed in CWP No. 21411 of 2015 (Sukhmeen Madaan vs. Punjab University and others) wherein, the Court has relied on the decision of the Honourable Supreme Court in (Asha vs. Pt.B.D. Sharma University of Health Sciences and others) (2012) 7 SCC 389, wherein it was held as follows:-

¶85

"30. ......"But where no fault is attributable to to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a

¶86

https://hcservices.ecourts.gov.in/hcservices/

¶87

meritorious candidate, is the quesiton we have to answer.

¶88

Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to a meritorious students. The rule of merits stands completely defeated in the facts of the present case...."

¶89

Though there can be rarest of rare cases or exceptional circumstances where the Courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would completely unjust and unfair to deny such exceptional relief to the candidate".

¶90

16.Also, it is relevant to refer the same decision of the Honourable Supreme Court in respect of delay in regard to admission to the Course wherein, in that case, the Honourable Supreme Court framed three questions for consideration and they are

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(i)Is there any exception to the principle of strict adherence to the Rule of Merit for preference of courses and colleges regarding admission to such courses?

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(ii)Whether the cut off date of 30th September of the relevant academic year is a date which admits any exception?

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(iii)what relief the courts can grant and to what extent they can mould it while ensuring adherence to the rule of merit, fairness and transparency in admission in terms of rules and regulations? and

¶94

(iv) what issues need not to be dealt with and finding returned by the Court before passing orders which may be more equitable, but still in strict compliance with the framework of Regulations and judgments of this Court governing the subject?. Of the four questions framed by the Honourable Supreme Court indicated above, the question No. (ii) will be relevant for this case. While answering the questions, it was held by the Honourable Supreme Court in Para No.31 is extracted earlier in para 15.

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¶96

17.Insofar as the petitioner in W.P.No.27096 of 2016 is concerned, even though he is treated as a Service Candidate, it is clear that the Department itself in the Counter stated that now he is not eligible. Further, if he is treated as a Service Candidate by virtue of my finding that Dr.M.Rajiv is to be treated as a Service Candidate as far as merit is concerned, obviously, Dr.M.Rajiv is better and secured more marks. Further after the direction of this Court in fact he has already been selected to the Course at Kilpauk Medical College. Hence, the petitioner in W.P.No.27096 of 2016 is not entitled to any relief.

¶97

18.In view of the foregoings and the decisions cited supra, this Court is of the view that the petitioner/Dr.M.Rajiv in W.P.No.25277 of 2016 deserved to be declared as Service Candidate and accordingly, W.P.No.25277 of 2016 is allowed and W.P.Nos.27906, 25828 and 25829 of 2016 are dismissed. Consequently, connected Miscellaneous Petitions are also closed. No costs.

¶98

Sd/Assistant Registrar //True Copy// Sub Assistant Registrar DP To 1.The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai-10. 2.The Secretary, Medical Council of India, Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi-110 077. 3.The Secretary, State of Tamil Nadu Department of Health & Family Welfare, Fort St. George, Chennai-600 010.

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¶100

4.The Director of Medical Education,
Kilpauk,
Chennai-10.
5.The Director of Public Health &
Preventive Medicine,
Teynampet,
Chennai-6.
6.The Member Secretary,
Medical Services Recruitment Board,
DMS Campus,
Anna Salai,
Teynampet,
Chennai-600 006.
+1cc to Mr.P. Godson Swaminath, Advocate, S.R.No.74391
+2cc to Mr.R. Aneesan, Advocate, S.R.No.74183
+1cc Government Pleader, Sr.No.76257(23/12/2016)
+1cc to Mr. G. Sankaran, Advocate Sr.No.74782 (28/12/2016)
tm(CO)
md(22/12/2016)
W.P.No.25277, 27096, 25828
& 25829 of 2016
and WMP.Nos.21636, 23270, 23271,
22122, 22123 of 2016

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Dr.M.Rajiv v. The Secretary

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Dr.M.Rajiv v. The Secretary

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