[PG Medical Admissions] Extent of Reservation for in-service doctors challenged in Madras High Court

The Madras High Court has issued notice in a petition challenging the extent to which in-service doctors are granted reservation and incentive points when it comes to post-graduate medical college admissions in government seats of Tamil Nadu medical colleges (Dr. Parkaviyan R. and ors v. State of Tamil Nadu)..Twelve doctors moved a petition jointly challenging Clause 29 (c) of the October 6, 2021 prospectus for admission to post-graduate degree or diploma courses in Tamil Nadu government medical colleges and government sets in self-financing medical colleges affiliated to the Tamil Nadu Dr MGR Medical University for the 2021-22 session. .The petitioners pointed out that under the present scheme, 50 percent of seats are allocated as government seats whereas 50 percent go towards the All India Quota. The dispute concerns the reservation extended under Clause 29 (c) of the prospectus within the 50 percent allocated towards government seats. .The petitioners highlighted that as per clause 29 (c) of the Prospectus, 50 percent out of the 50 percent government seats have been reserved for in-service candidates. .Additionally, in-service candidates have also been permitted to apply in the remaining "open-category" in State government seats i.e. the 50 percent of the 50 percent government seats. Pertinently, while applying in this "open-category", in-service candidates can also avail incentive points or advantages accorded to them on account of having served in remote or difficult or hilly areas as defined by a State-appointed committee. .This dilutes the concept of merit in admissions and is unjust, unfair, arbitrary, discriminatory, and unconstitutional, the petitioners asserted.."In not exclusively ear-marking the selection for admission in the open category to non-service candidates and in granting weightage in the form of incentive marks to in-service candidates in the open category as well, the Respondent No. 1 to 3 have acted in an arbitrary, unreasonable, and disproportionate manner .... In permitting in-service candidates to apply in the ‘open category’ and further awarding incentive marks to those in-service candidates, the Respondents have taken away the very spirit and essence of an ‘open category’," the petition stated..The petitioners highlighted that as far back in 1996, in State of TN v. T Dhilipkumar, the Supreme Court had called on the State to conduct a study and assess what the extent of reservation should be each year for in-service candidates and to reduce it to below 50 percent, if appropriate. The direction was issued following a challenge to an earlier Government Order that provided for such reservations to in-service candidates. .As per the petitioners, however, no such assessment was conducted by the State authorities till date. In other words, the State government has continued to reserve 50 percent seats in favour of in-service candidates in postgraduate degree courses without determining on a yearly basis whether such reservation of 50% was in fact necessary to achieve the purported objective of the measure, it was submitted.."To the Petitioners’ best knowledge, it is submitted that the State of Tamil Nadu is the only State in the country to have such an arbitrary policy of reserving 50% seats for in-service candidates and of further awarding those in-service candidates who apply in the ‘open category’ incentive marks, without so much as assigning any reason to justify the introduction of such a policy," the petitioners added. .Justice N Anand Venkatesh issued notice in the matter on Wednesday. The government counsel present were directed to take written instructions and report back to the Court. The matter would be heard next on November 1, Monday. .Advocate Suhrith Parthasarathy appeared for the petitioners. Advocate A Selvendran took notice for State-authorities whereas Standing Counsel Subharanjani Ananth took notice for the National Medical Commission. .Highlights of the petitioner's contentions.On the latest case-law governing reservation for in-service candidates.The grant of reservation to in-service candidates have led to various rounds of litigation before the Madras High Court and the Supreme Court that the petitioners have recounted in their plea. .Inter alia, it is acknowledged that the Supreme Court in K Duraisamy and another v. State of TN and others had earlier upheld the validity of a Government Order allocating 50% of seats to on-service candidates. However, in doing so, the top Court also highlighted its earlier directions in the T Dhilipkumar case for studies to be conducted by a highly-qualified committee to determine on a yearly basis what the percentage of reservation should be..Reservations in postgraduate medical admissions eventually came to be governed by the Postgraduate Medical Education Regulations, 2000, it is noted. Regulation 9 prescribes the procedure of selection. The proviso to Regulation 9(4) permits the government to grant incentive marks (in addition to marks scored in NEET) if the candidate served in remote or difficult areas. .The petitioners pointed out that after the insertion of this proviso, the reservation given thereafter to in-service candidates by the Uttar Pradesh government was struck down by the Allahabad High Court. The petitioners further highlighted that this decision was later upheld by the Supreme Court in State of Uttar Pradesh v. Dinesh Singh Chauhan. It was added that the Supreme Court held that the proviso cannot be interpreted as granting State governments the power to make reservation for in-service candidates..A three-Judge Bench of the Supreme Court later disagreed with the Dinesh Singh case and referred the matter to a larger Bench. .Thereafter, a five-Judge Bench recently overruled the Dinesh Singh Chauhan ruling in the case of Tamil Nadu Medical Officers Association v. Union of India in a decision dated August 31, 2021. The Court, thereby, held that States can provide for a separate source of entry for specific percentage of in-service candidates seeking admission to Post Graduate degree courses, the petitioners recount..While this decision came as a shock to most non-service doctors, it also provided some relief as non-service doctors now expected that they could compete freely, based on merit, in the open category or remaining percentage of seats not reserved for in-service doctors, the petitioners submitted..In this backdrop, the petitioners have raised grievance over the latest prospectus for post graduate admissions in 2021-22, whereby in-service doctors were not only given a 50 percent reservation in government seats, but also given incentive points in the remaining 'open-category' seats..Categorisation of remote, hilly, difficult areas for providing in-service doctors incentive points flawed: Petitioners.As per the present Prospectus, "the Open category, will be open to both service and non-service candidates and that seats will be filled up based on the marks already defined or such criteria to be defined by the 1st Respondent from time to time as per the decision of the Committee headed by Hon’ble Thiru. A. Selvam, High Court Judge (Retd.)", the petitioners pointed out..The Committee of experts headed by retired Justice A Selvam was constituted following a 2018 Madras High Court judgment to categorise doctors who are employed in remote, difficult and rural areas for the purpose of determining additional weightage or incentive marks under the proviso to Regulation 9 (4) of the Postgraduate Regulations..As per the petitioners, the category-wise list published in 2019 by the State government following the constitution of this Committee is also flawed.."It fails to consider a host of factors such as social and economic conditions, geographical location, accessibility and similar other relevant considerations, and accordingly, several PHCs and Government Hospitals listed under the category of Difficult Areas in Hills, Difficult Areas in Plains, Remote Area and Rural Areas in Annexures I to IV of the GO have been wrongly included," the petitioners stated..The GO prescribing these categories were challenged before the High Court in 2019 and the Court had directed the Justice Selvam Committee to receive representations from various stakeholders and make changes, if necessary, it was further recounted..In view of this aspect as well, the petitioners argued that while the Supreme Court in the Tamil Nadu Medical Officers Association case has held that State governments can grant reservations to in-service doctors, such power has not been exercised by the Tamil Nadu government in a just, fair and reasonable manner. ."The reservation to the extent of 50% in favour of in-service doctors in postgraduate degree courses is unjust and arbitrary ... The allocation of the said 50% is also grossly disproportionate and in violation of well settled principles of constitutional law," the petition stated. .Despite a lapse of over 25 years since the Supreme Court first recommended that the requirement of reservation for in-service candidates should be studied on a yearly basis, the petitioners highlighted that the reservation of 50% has continued. This is entirely arbitrary and lacks concrete and justifiable rationale, it was argued. ."This is especially clear when one considers the fact that such reservation discontinued for academic years 2018-19, 2019-20 and 2020-21.. reservation of 50% seats for in-service candidates is entirely unreasonable, as the Respondents have failed to conduct a proper study or analysis of the situation prevailing during each academic year to understand what the percentage-wise requirement for in-service doctors during each academic year ought to be," the petitioners added. .As such, the petitioners urged the Court to quash Serial number/ clause 29 (c) of the Prospectus under challenge. The said clause is patently illegal and ultra vires Regulation 9 of the Postgraduate Regulations, 2000, the petition asserted. ."Proviso to Regulation 9(IV) of the Postgraduate Regulations grants power to the government only to accord weightage in the form of incentive marks in determining merit of candidates in the in-service category. The state government does not have the power to accord such weightage in the open category, i.e., the 50% of seats not reserved for in-service candidates", the plea contended..[Read Order]