P.K. Mohanty, J.
1. The petitioners in all these writ petitions are the Medical Graduates from either of the three Government Medical Colleges affiliated to three respective Universities of the State of Orissa. They have been registered as Medical Practitioners after completion of their mandatory internship/housemanship. It is their claim that having a brilliant academic career, they were interested in prosecuting Post Graduate Medical Course in faculties of their choice during the academic session 2003 by competing in the entrance test for admission to such courses like in earlier years. But to their disappointment, by the illegal and arbitrary decision of the State Government, they have become ineligible, the entire seats in the Post-Graudate medical course having been reserved for in-service candidates only.
2. Challenge is made to the 'eligibility criteria of applicants' seeking admission to the Post Graduate Medical Course, 2003 in three medical colleges of Orissa in advertisement dated 13.7.2003, fixing minimum three years of service experience either as contractual service under the State Government of Orissa or 3 years of Government service experience within, the State of Orissa by 31st March, 2003 as illegal and unconstitutional.
3. In order to justify three years service experience either in shape of contractual service or regular service under the Government of Orissa to be eligible to take the test for admission to the P.G. Course, the State of Orissa has in para- 6 of the counter affidavit taken the plea that a conscious decision was taken by the State Government keeping in view the following objectives :
'6 That it is more relevant to submit here that 25% of the total P.G. seats (59 seats) are earmarked for all India quota which is deducted from out of State P.G. Seats. State is interested to give P.G. training to its own in-service candidates, so that after completion of their P.G. course, Government can utilize their specialized knowledge for the State. On the other hand, direct candidates after completion of their P.G. Course may not offer their services to the State. It is worth while to mention here that the State is also spending about 3 to 4 lakhs of Rupees for a candidate for completion of his/her P.G. course. Hence, there will be huge loss of money on the part of the State Government to give P.G. training to such candidate whose services cannot be utilized for the benefit of the people of the State.
It is respectfully submitted that Government of Orissa in Health and Family Welfare Department have taken conscious decision by fixing three years service experience either in shape of contractual service under Government of Orissa or Government service within the State of Orissa to be eligible to take admission to P.G. Course. This decision was taken in order to utilize the specialized knowledge and services of P.G. qualified doctors for the people of Orissa at large keeping the following objectives in view :
(a) The Government of Orissa is usually incurring huge amount of expenditure for the P.G. studies undertaken by the fresh candidates not in Government service and it becomes fruitless when they leave the State for better prospects elsewhere as a result of which there is a huge shortage of doctors adversely affecting the health care services.
(b) To encourage the in-service candidate for availing P.G. study in the Medical Colleges of the State, so that their services can be fully utilized in the State.
(c) In order to check the candidates, to leave Orissa after completion of their P.G. courses for greener pastures in the other hospitals outside the State inasmuch as the in-services candidates have to execute a bond binding himself to serve under the State Government for period of five years after completion of P.G. study.
Therefore, Government considered expedient to dispense with the admission of the direct candidates in P.G. Courses and entertaining in-service candidates taking the above aspects into consideration.
4. Sri Jagannath Patnaik, learned Senior Advocate for the writ petitioners submitted that the eligibility criteria fixed by the State Government makes out a 100 per cent reservation for in-service candidates, which is per se discriminatory and violative of Article 14 of the Constitution of India. It was always the practice, that there were two categories of candidates like direct and in-service, who could fill up the seats but there was no reason to discontinue the age old practice, by which the direct candidates are totally deprived of equal opportunity to show their merits. It is his submission that the Courts, in no uncertain terms, have recognized merit as the basis and dominant consideration for selecting persons for Post Graduate studies and denial of opportunity to the direct candidates to sit at the entrance examination, amounts to shut out meritorious students to avail of the medical education of the Post Graduate level. The learned counsel has relied on certain decisiops of this Court as well as of the Apex Court in support of his contentions, which shall be considered later at the appropriate stage.
5. Opposite party No. 4, Medical Council of India, in its return is non committal, so far as the reservation is concerned, but emphasized only on the provision of Regulation 9 of its 'Post-Graduate Medical Education Regulation, 2000' with regard to selection of students to the P.G. Medical Courses and the minimum qualifying marks in the competitive test fixing 50% for general and 40% for Scheduled Caste, Scheduled Tribe and backward classes. Regulation 9 is quoted hereunder for better appreciation;
(1) Students for Post Graduate Medical Course shall be selected strictly on the basis of their academic merit.
(2) For determining the academic merit, the University/ institution may adopt any one of the following procedures both for degree and diploma courses :-
(i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State; or
(ii) On the basis of merit as determined by a centralized competitive test held at the national level; or
(iii) On the basis of the individual cumulative performance at the first, second and third M.B.B.S. Examinations, if such examinations have been passed from the same University; or
(iv) Combination of (1) and (iii) :
'Provided that wherever test for post-graduate admissions is held by a State Government or a University or any other authorized examining body, the minimum percentage of marks for eligibility for admission to post-graduate medical courses shall be fifty per cent for candidates belonging General Category and forty per cent for the candidates belonging to Scheduled Castes, Scheduled Tribes and other backward classes.
Provided further in non-Government institutions fifty per cent of the total seats shall be filled up by the competent authority and the remaining fifty per cent by the Management of the Institution on the basis of merit.'
According to the M.C.I., there should be selection on the basis of merit to be determined by a competitive test by the State or by the competent authorities appointed by the State Government or by the University or group of Universities in the same State.
6. In A.I.I.M.S. Students' Union v. A.I.I.M.S. and Ors.; A.I.R. S.C. 3262, Hon'ble R.C. Lahoti, J. speaking for the Apex Court observed in paragraph 27, in the following words :
'Reservation is guided by consideration of ensuring allotment of a privilege of quota to, or conferral of State largesse on, a defined class or category of limited persons dispensing with the need of competition with another defined class of persons or remaining persons. Beneficiary of reservation is necessarily a minor or smaller group of persons which deservedly stands in need of protection or push up because of historical, geographical, economic, social, physical or similar such other handicaps. Persons consisting in reserved category are found to be an under-privileged class who cannot be treated on par with a larger and more privileged class of persons and shall be denied social justice and equality unless protected and encouraged. Sources of recruitment or entry are carved out for the purpose of achieving a defined proportion of intermingling at the target or destination between two or more categories of such persons who though similarly situated or belonging to one class to begin with, have stood divided into two or more categories by fortuitous circumstances and unless allowed entry from two separate sources one would exclude or block the other. No one of the two classes can be said to be weaker than the other. The factor impelling provision of different or separate sources of entry may not provide justification for reservation. Two sources of entry ensure an equal distribution between two segments of one society. The emphasis in reservation is on the subjects; the emphasis in providing sources of entry is on the subject matter. Reservation is protective discrimination; provision for sources of entry is aimed at securing equal or proportionate distribution. The characteristics of the two may to some extent be over lapping yet the distinction is perceptible though fine.'
7. The Apex Court was dealing with a case of admission to the P.G. Course in All India Institute of Medical Science, where the division of seats between two sources of entry was so carved out that it resulted in reservation ensuring allotment to the extent of 100% to the P.G. seats followed by guaranteed placement in the choicest of creamy disciplines to the candidates belonging to one category (i.e. institute's in-house candidates) without regard to their competitive merit. This, as has been observed, is not a reservation but a super-reservation and, therefore, not a source of entry.
8. In State of Tamil Nadu v. T. Dillip Kumar; 1995(5) SCALE 67, the Apex Court confirmed the judgment of the Madras High Court striking down the reservation for in-service candidates in P.G. (Medical) Course to the extent of 60% and directing the State Government to keep the reservation confined to 50% only. The Apex Court, while upholding the decision observed and directed the State Government to appoint a highly qualified Committee to determine from year to year, the percent agewise reservation for in-service candidates having regard to the then prevailing situation and that the percentage of 50, if found appropriate, should be reduced accordingly.
9. In K. Duraiswamy v. State of Tamil Nadu, A.I.R. 2001 S.C. 717, the Apex Court observed that;
'if the Government is said to possess the power to fix a quota for the exclusive benefit of 'in-service' candidates, it is beyond comprehensive or dictates of either reason or logic as to why the Government cannot equally exclusively earmark the remaining seats in favour of 'non-service' or private candidates, thereby confining the claims of services candidates to the number of seats earmarked and allocated to them. As there can be a classified category of 'service candidates', it is open to the Government to make classification of all those other than those falling in the category of service candidates, as non-service candidates and allocate the remaining seats after allotment to the service candidates for exclusive benefit of the sources of non-service or private candidates. There is nothing in law which deprive the Government of any such powers and no such impediment has either been brought to our notice at the time of hearing or seems to have been brought to the notice of the learned single Judge to warrant any such construction, as has been adopted by him. We are also of the view that it does not lie in the mouth of the writ petitioners to raise a bogey-of selection based on merit alone, only in respect of a portion of the seats available for admission to non-service candidates, when they belong to and are part of a category or class who have got in their favour fifty per cent of the number of seats in each of the disciplines allocated to their category of 'in-service' candidates to be filled up exclusively from such 'in-service' candidates on basis of their own inter se merit and not on the overall merit performance of all the candidates both in-service and non-service put together.'
In paragraph-12, the Apex Court further observed that :
'The mere use of the word 'reservation' per se does not have the consequence of ipso facto applying the entire mechanism underlying the constitutional concept of a protective reservation specially designed for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes to enable them to enter and adequately represent in various fields. The meaning, content and purport of the expression will necessarily depend upon the purpose and object with which it is used. Since reservation has diverse nature and may be brought about in diverse ways with varied purposes and manifold objects, the peculiar principles of interpretation laid down by the Courts for implementing reservations envisaged under the Constitution in order to ensure adequate and effective representation to the backward classes as a whole cannot be readily applied, out of context and unmindful of the purpose of reservations as the one made in this case, more to safeguard the interest of candidates, who were already in service to enable such in-service candidates to acquire higher and advanced education in specialized fields to improve their professional talents for the benefit of the patients to be treated in such Medical Institutions where the in-service candidates are expected to serve. That apart, where the Scheme envisaged is not by way of a mere reservation but is one of classification of the sources from which admissions have to be accorded, fixation of respective quota for such classified groups, the principles at times applied in const ruing provisions relating to reservation simpliciter will have no relevance or application. Though the prescription of a quota may involve in a general sense reservation in favour of the particular 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 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 failing 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 stake a claim against the quota earmarked for the other class or category. Since we are of the view that the Full Bench has correctly come to the conclusions that the scheme adopted for selection of candidates for admission in question provided for a definite and fixed quota for the respective classified sources of admission and reasons assigned therefor do not suffer from any infirmity whatsoever to call for any interference at our hands, these appeals fail and are dismissed.'
10. It may be reiterated that the Apex Court in A.I.M.S. Students' Union case (supra) observed that reservation unless protected by the Constitution itself as given to us by the founding fathers and as adopted by the people in India, is sub-version of fraternity, unity and integrity and dignity of the individual. While delaying with Directive Principles of State Policy, Article 46 is taken note of often by overlooking Articles 41 and 47. Article 41 obliges the State inter alia to make effective provision for securing the right to work and right to education. Any reservation in favour of one, to the extent of reservation, is an inroad on the right of others to work and learn. Article 47 recognizes the improvement of public health as one of the primary duties of the State. Public health can be improved by having the best of doctors, specialist and super-specialists. Under Graduate level is a primary or basic level of education in Medical Sciences wherein reservation can be understood as the fulfilment of societal obligation of the State towards the weaker segments of the society. Beyond this, a reservation is a reversion or diversion from the performance of primary duty of the State. Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunate in mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Once that is done, the protection needs to be withdrawn in the own interest of proetectnees so that they develop strength and feel confident of stepping on higher rungs on their own legs shedding the crutches. Pushing the protection of reservation beyond the primary level betrays bigwigs' desire to keep the crippled for ever.
11. The Apex Court further observed that every citizen of India is fundamentally obligated to develop the scientific temper and the humanism. He is fundamentally duty bound to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher level of endeavour and achievements. State is, all the citizens placed together and hence though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State. Any reservation, apart from being sustainable on the Constitutional anvil, must also be reasonable to be permissible. In assessing the reasonability one of the factors to be taken into consideration would be - 'whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the Nation constantly rising to higher level. The Apex Court further observed that Constitutional enactment of fundamental duties, if it has to have any meaning must be used by Courts as a tool to tab, even a taboo, on State action drifting away from Constitutional values.
12. This Court in Dr. Dillip Kumar Das and Ors. v. State of Orissa and Ors.; 2002 (II) O.L.R. 25 had occasion to deal with the prospectus for admission to the P.G. (Medical) Course, 2002 in the Government Medical Colleges of Orissa challenging the decision of the State Government and some clauses in the prospectus which enabled the in-service candidates to seek admission to the P.G. (Medical Course) on the basis of their performance in the M.B.B.S. course, but confined to their own University in case the course they wanted to pursue was available in that university on the ground that it was clearly against the prescription of Medical Council of India and not sustainable in law. The State Government justified the stipulation in the prospectus on the ground that State wanted to ensure that the seats reserved for in-service candidates do not go vacant in view of the inability of the in-service candidates to compete equally-with the direct candidates since it was found that in-service candidates serving in rural areas were less equipped to meet the challenge in the entrance examination and it was necessary to make' a special provision for such candidates. The Court formulated the question as to whether the prescription that in-service candidates that too only some of them would get admitted to the P.G. (Medical) course even without taking the entrance examinations is constitutionally valid in the light of the position settled by the Supreme Court and of this Court and as to whether keeping out the said candidates to possess the requisite qualification to take the entrance examination is valid and as to whether the mode could be considered valid in the light of the Medical Council Regulation. This Court struck down clauses 6.1,6.1.1, 6.1.2, 6.1.3, 6.2, 6.4 and 9.1 in its entirety and clause-14 providing for universitywise selection of in-service candidates and directed that admission to the P.G. (Medical) course could only be made on the basis of performance of the candidates in the common entrance examination and assessment of merits of the candidates thereby subject to other reservation provided in the prospectus. This decision was challenged by the State Government by filing Special Leave Petition before the Apex Court but the Apex Court dismissed the Special Leave Petition.
13. In State of Madhya Pradesh and Ors. v. V. Gopal D Tirthani and Ors.; 2003 (5) Supreme 473 one of the questions that fell for consideration was, as to whether 20% seats allocated for in-service candidates in Post-Graduation in Universities of Madhya Pradesh is a reservation and whether it is a separate or exclusive channel of entry or source of admission and the stipulation in the Rule for Madhya Pradesh Medical and Dental and Post Graduate Entrance Examination Rules, 2002, which reserved 20% of the seats for the employees of the Government of Madhya Pradesh (in-service) under Clause 8.6.1. was valid and as to whether exempting them from taking the P.G. entrance examination was sustainable. The Apex Court following the decision in K. Duraiswamy's case (supra) at paragraph-21 observed :
'21. To withstand the test of reasonable classification within the meaning of Article 14 of the Constitution, it is well settled that the classification must satisfy the twin test :
(i) it must be founded on an intelligible differentia which distinguishes persons or things placed in a group from those left out or placed not in the group, and (ii) the differentia must have a rational relation with the object sought to be achieved. It is permissible to use territories or the nature of the objects or occupations or the like as the basis for classification. So long as there is a nexus between the basis of classification and the object sought to be achieved, the classification is valid. We have, in the earlier part of the judgment, noted the relevant statistics as made available to us by the learned Advocate General under instructions from Dr. Ashok Sharma, Director (Medical Services), Madhya Pradesh, present in the Court. The rural health services (if it is an appropriate expression) need to be strengthened 229 community health centers (CHCs) and 229 community health centers (CHCs) and 169 first referral units (FRUs) need to be manned by specialists and block medical officers who must be post graduates. There is nothing wrong in the State Government setting apart a definite percentage of education 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 oh 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. It is not that in-service candidate would leave the service merely on account of having secured a post graduate degree or diploma though by virtue of being in the service of the State Government. If there is any misapprehension the same is allayed by the State Government obtaining a bond from such candidates as a condition precedent to their taking admission that after completing P.G. Degree/Diploma Course they would serve the State Government for another five years. Additionally a bank guarantee of rupees three lakhs is required to be submitted along with the bond. There is, thus, clearly a perceptible reasonable nexus between the classification and the object sought to be achieved.'
14. In Pre-P.G. Medical Sangharsh Committee and Anr. v. Dr. Bajrang Soni and Ors.; A.I.R. 2001 S.C. 2743, the Apex Court has considered the powers as well as the right of the State Government to provide for reservation of seats for admission to P.G. (Medical) Course for in-service candidates and the reasonableness or otherwise and the extent up to which such reservation would be permissible or reasonable, a comparably similar case as that of the present one, and it was held that it is permissible for the Government to fix such a course 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, 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 the 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 requirement of such hospitals run by the State and State Departments, the only avenue for treatment of the large body of ordinary common man, all over the State. This large public interest, unlike reservation envisages for S.C./S.T. 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.
15. In the present case, the State Government in order to justify its stand of fixing three years' contractual service or service under the State Government as the minimum eligibility requirement for entry into a Post Graduate Medical Course has taken the plea that it is interested to give P.G. Training to its own in-service candidates so that after completion of their P.G. Course, the Government can utilize their specialized knowledge and services for the people of Orissa at large keeping in view the fact that the State Government is spending huge amount for P.G. studies and it becomes fruitless when the fresh candidates not in Government service leave the State for better prospects elsewhere and there is a huge shortage of doctors adversely affecting the health care service. In addition, in order to encourage the in-service candidates for availing the P.G. studies in the Medical Colleges of the State and to check candidates from leaving Orissa after completion of P.G. Course for greener pastures in other hospitals outside the State, the State Government considered it expedient not to admit direct candidates and entertaining in-service candidates in its place only.
There are 242 seats in P.G. Medical Course in three different Medical Colleges of the State out of which .25% of the seats (59 seats) are earmarked for All India quota and the balance 183 seats are available for the State selected candidates.
16. In the conspectus of the decision of the Apex Court, the law is by now well settled that the State Government is possessed with the power of providing reservation and determining the source of admission to the P.G. Medical Course. Necessarily in exercise of such power, the State Government is entitled to reserve a certain reasonable and definite percentage of seats for its own in-service doctors, who after attaining higher academic achievements would be available to be posted in P.H. Cs and hospitals run by the State Government.
It is permissible for the State Government to fix such a course or classification of candidates from which selection for admission to P.G. Colleges in the State can be made, If reservation of a certain proportion of the total seats is made for achieving such a purpose, that can have a reasonable nexus to the larger goal of affording opportunities to in-services doctors in various hospitals run and maintained from out of the public funds by the Government in absence of which there may dearth of qualified Post-Graduate Doctors and experts to meet the requirements of such hospitals run by the State Government. A large body of ordinary common citizen of all over the State specially in the sub-urban and rural areas would be benefited by the said process and this larger public interest is a distinct and vitally important public purpose in itself for which the State Government can keep in reservation for in-service candidates a certain number of seats. But in assessing the reasonability or the extent to which the reservation is permissible, one of the factors is whether the character and quantum of reservation should be detrimental to the common interest and the ultimate goal of excellence in the field of specialization. In the words of the Apex Court in A.I.I. Ms case protective push or prop by way of reservation or classification must withstand the test of Article 14 and any over-generous approach to a section of beneficiaries if it has the effect of destroying another's right to education, more so, by pushing a mediocre over a meritorious belies the hope of the Constitutional goal and is impermissible.
17. Article 41 obligates the State inter alia to make effective provisions for securing the right to work and right to education. Any reservation in favour of one to the extent of reservation is an encroachment on the right of others to work and to learn. True it is Article 47 recognizes the improvement of public health as one of the primary duties of the State and the public health can be improved by having the best doctors, specialists and super-specialists, but that would not justify, denying a right to higher education altogether to non-service or private candidates.
18. The Constitutional Bench of the Apex Court in Unni Krishnan, J.P. v. State of A.P. and Ors.; AIR 1993 SC, 21 78, has recognized that the right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of the transcendental importance in the life of an individual has been recognized not only in this country since thousands of years but all over the world. There cannot be any doubt that without education being provided to citizens of this country, the objectives set- forth in the Preamble of the Constitution cannot be achieved. The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of Directive Principles in Part-IV of the Constitution. Article 41 of the Constitution obligates the State to make effective provision for securing the right to work and the right to education, public assistance in cases of unemployment, old age, sickness and disablement and in other case of undeserved want of course within the limits of its economic capacity and development.
The right to education has to be construed in the context of Articles 45 and 41 of the Constitution, The Apex Court observed:
'148... the right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development, by saying so, we are not transferring Article 41 from Part IV to Part III we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State.'
While holding that the right to free education is available only to children until they complete the age of 14 years, it was observed that the obligation of the State to provide higher education is subject to limits of its economic capacity and development.
19. In view of what has been discussed in the foregoing paragraphs, there can be no escape from the conclusion that the State cannot deny to its citizens the right to higher education subject of course to its economic capacity and development. The State Government by incorporating and prescribing three years Government service as an eligibility condition for admission to the Post Graduate (Medical) courses, has denied to the non- service or fresh Medical Graduates, who may be equally meritorious or more meritorious than the in-service candidates, the entry to the Post Graduate (Medical) Course. The stand taken by the State Government that in-service candidates on attaining the higher academic achievement would be available to be posted in rural areas and Government hospitals and dispensaries to improve the health care services of the State, it certainly has a right and is justified in reserving a certain definite percentage of seats in favour of their in-service candidates. Protective reservation in favour of the in-service candidates within a reasonable percentage of the available seats for achieving the avowed purpose of improving the health care services of the State is not impermissible in law, but by such reservation, the State Government cannot deny to its non-service or fresh Medical Graduates from getting the Post Graduate Medical education. There can be no perceptible reason for reservation of all the available seats in favour of such in-service candidates. Such reservation in favour of the in-service candidates and exclusion of non-service or private candidates altogether offends the constitutional mandate as enshrined in Articles 41, 45 and 46 of the Constitution of India and the Fundamental Right of the non-service or fresh Medical Graduates to higher education. The Medical Council of India in its Post-Graduate Medical Education Regulation, 2000, more particularly in Regulation-9 thereof, has clearly stipulated that admission to Post Graduate (Medical) course shall be made strictly on the basis of academic merit and the merit is to be determined in terms of sub-Regulation (2) thereof.
20. In such view of the matter, there cannot be any escape from the conclusion and we have no hesitation to hold that wholesale reservation of the entire 183 open seats in favour of the in-service candidates by way of a stipulation of 3 years service under the State Government as ,the eligibility condition is per sediscriminatory, un-constitutional and impermissible.
21. In view of what has been held earlier, the question that falls for consideration is as to what extent in the given facts of the case as discussed earlier, would be a permissible reservation in favour of such in-service doctors. In some earlier years, the State Governmentmade provision for admitting students from both the sources i.e. in-service and non-service or fresh candidates. In the conspectus of the decision of the Apex Court, we are of the considered opinion that any reservation in favour of in-service candidates beyond 50% of the open seats is per se discriminatory and impermissible in law and, therefore, we quash the decision of the State Government reserving all the 183 open seats in favour of the in-service candidates. The State Government could legitimately reserve or set apart to a maximum limit of 50% of Post Graduate (Medical) seats in favour of in-service candidates and the balance has to be kept open for the non-service or private candidates. The admission to the course obviously has to be made on the basis of the merit and merit alone through a common entrance test.
22. In the result, we quash the decision of the State Government stipulating tree years contractual service or service under the State Government as the minimum eligibility criteria and reservation of seats for in-service candidates beyond 50% of the open seats for Post-Graduate Medical Course, 2003. The State Government is. therefore, free to formulate its policy accordingly in the prospectus and admit students keeping in view what has been stated in this judgment. We further direct that expeditious steps be taken for formulating the policy and criteria of admission and admissions to the Post Graduate Medical Course be done accordingly.
The writ petitions are allowed to the extent indicated.
P.K. Misra, J.
23. I agree