Dr. Neha Tiwari (Smt.) and ors. Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 4608/2008 and submitted that the medical officers of the public health and family welfare department render services in rural and tribal areas and hence they are treated as in-service candidates and 20% of the seats in post graduate medical courses in the colleges under the government of madhya pradesh are allocated for in-service candidates to enable them to upgrade their qualifications and skills so that they can render better services to the people of the state. on account for their having remained occupied with their service obligations, they became detached or distanced from theoretical studies and therefore could not have done so well as to effectively compete with fresh medical graduates at the pg entrance examination. providing two sources of entry at the post graduation level in a certain proportion between in-service candidates and other candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. demonstrators admittedly teach in the medical colleges in the government of madhya pradesh and, therefore, remain in touch with theoretical studies and can effectively compete with fresh medical graduates taking the post graduate entrance examination.ordera.k. patnaik, c.j.1. the common question raised in this batch of writ petitions is whether a demonstrator should be treated as an in-service candidate for admission to the quota of seats allocated in postgraduate medical courses in the colleges under the government of madhya pradesh.2. in exercise of powers conferred by section 10 of the madhya pradesh chikitsa shiksha sanstha niyantran adhiniyam, 1973, the state government has made the rules relating to admission to post graduate medical (md & ms) courses and post graduate diploma and dental (mds) courses in the medical and dental colleges under the state government in the state of madhya pradesh, called the madhya pradesh medical and dental post graduate course entrance examination rules, 2008 (for short 'the rules, 2008'). in the rules 2008, 20% of the seats in the post graduate medical courses in the colleges under the government of madhya pradesh have been allocated for in-service candidates and in rule 1.2(d) of the rules, 2008, an 'in-service candidate' has been defined to mean a medical officer of the public health and family welfare department, who is serving under the government of madhya pradesh on regular or contract basis. the rules, 2008 provide that on the basis of performance in the common entrance examination for all the candidates, a separate merit list is to be prepared for in-service candidates and on the basis of their merit position, in-service candidates are to be called for counselling for admission to the 20% seats allocated to inservice candidates in the postgraduate medical courses in different colleges under the government of madhya pradesh. the petitioners who are medical graduates and are working as demonstrators in different medical colleges under the government of madhya pradesh and are not working as medical officers of the public health and family welfare department, thus, cannot be considered for admission to the quota of 20% seats allocated for in-service candidates and can only be considered for admission to the open seats as per their merit position in the merit list. aggrieved by the definition of in service candidate in rule 1.2(d) of the rules 2008, the petitioners have filed these writ petitions under article 226 of the constitution for declaring the definition of 'in-service candidate' in the rules 2008 as discriminatory and violative of article 14 of the constitution.3. mr. rajendra tiwari, learned senior counsel appearing for the petitioners in writ petition nos. 4608/2008 and 4834/2008, mr. p.k. tiwari, learned counsel for petitioner in writ petition no. 4071/2008 and mr. aditya sanghi, learned counsel for the petitioners in writ petition nos. 3056/2009 & 3069/2009, submitted that the demonstrators are also in the service of the state government and are government servants to whom the fundamental rules are applicable. mr. sanghi submitted that in ram krishna dalmia v. justice tendolkar : [1959]1scr279 , the supreme court has laid down the principles to be borne in mind by the court in determining the validity of a statute on the ground of violation of article 14 and has held that article 14 forbids class legislation but does not forbid reasonable classification for the purpose of legislation but in order to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. he submitted that although there is a presumption of constitutionality in favour of the statute, this presumption cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. he submitted that the only justification given in the return filed by the respondents is that in the m.p. medical and dental post graduate course entrance examination rules, 2007 (for short 'the 2007 rules'), demonstrators were treated as in-service candidates but rule 9.2 (a) of the 2007 rules provided that the demonstrator can undergo postgraduate course on the subject in which they are working, but the division bench of this court has found rule 9.2 (a) of the 2007 rules ultra vires in the case of dr. shailendra kumar patna v. state of m.p. ilr 2007 916. he submitted that this cannot be a valid reason for excluding demonstrators from the definition of 'in-service candidate' under the rules 2008.4. mr. samdarshee tiwari, learned government advocate, on the other hand, relied on the return filed on behalf of the respondent no. 1 in w.p. no. 4608/2008 and submitted that the medical officers of the public health and family welfare department render services in rural and tribal areas and hence they are treated as in-service candidates and 20% of the seats in post graduate medical courses in the colleges under the government of madhya pradesh are allocated for in-service candidates to enable them to upgrade their qualifications and skills so that they can render better services to the people of the state. he submitted that the justification for treating medical officers of the public health and family welfare department who are working in the rural and tribal areas is given by the supreme court in state of m.p. and ors. v. gopal d. tirthani and ors. : air2003sc2952 . he relied on paragraph 21 of the aforesaid decision of the supreme court in gopal d. tirthani and ors. (supra), in which the classification of in-service candidates has been held to satisfy the twin test of intelligible differentia and such intelligible differentia having a rational relation with the object sought to be achieved. he submitted that demonstrators who really teach in medical colleges do not work in the rural and tribal areas and can always compete for the open seats and cannot be grouped together with in-service candidates who compete between themselves for the 20% seats allocated for in-service candidates in the post graduate courses in the medical colleges under the government of madhya pradesh.5. we have considered the submissions of the learned counsel for the parties and we find that the real object of allocating a certain percentage of seats in post graduate medical courses for in-service candidates is that such in-service candidates on account of the nature of their duties in service remain out of touch with theoretical studies and are, therefore, not in a position to compete with fresh medical graduates for the open seats and with a view to enable such an in-service candidate to upgrade their qualifications and skills, a certain percentage of the seats in post graduate courses are allocated for in-service candidates and the competition for admission to this quota allotted for in-service candidates is limited to in-service candidates. this will be clear from the following portion of paragraph 31 of the judgment of the supreme court in aiim students' union v. aiims and ors. : air2001sc3262 , quoted in para 20 of the judgment of the supreme court in gopal d. tirthani and ors. (supra):the candidates in both the categories were medical graduates. some of them had done graduation some time in the past and were either picked up in the government service or had sought for joining government service because, may be, they could not get a seat in post graduation and thereby continued their studies because of shortage of seats in higher level of studies. on account for their having remained occupied with their service obligations, they became detached or distanced from theoretical studies and therefore could not have done so well as to effectively compete with fresh medical graduates at the pg entrance examination. permitting in-service candidates to do post graduation by opening a separate channel for admittance would enable their continuance in government service after post graduation which would enrich health services of the nation. candidates in open category having qualified in post graduation may not necessarily feel attracted to public services. providing two sources of entry at the post graduation level in a certain proportion between in-service candidates and other candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. the object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to provide protection and encouragement to one at the entry level.in gopal d. tirthani and ors. (supra), after quoting the aforesaid passage, the supreme court has further held in para 21 as reported in the scc that class of in-service candidates satisfies the twin tests of reasonable classification and there is nothing wrong in the state government setting apart a definite percentage of educational seats at post graduation level consisting of degree and diploma courses exclusively for the in-service candidates.6. considering the law as laid down by the supreme court in aiim students' union and gopal d. tirthani (supra), demonstrators cannot be classified as in-service candidates for the purpose of admission to the seats allocated for in-service candidates in postgraduate medical courses. demonstrators admittedly teach in the medical colleges in the government of madhya pradesh and, therefore, remain in touch with theoretical studies and can effectively compete with fresh medical graduates taking the post graduate entrance examination. in other words, their service obligations do not warrant them to work in hospitals in urban, rural and tribal areas so as to prevent them from studying and preparing for the post graduate entrance examination. demonstrators can compete for the open seats and need not be considered for admission to the quota allocated for in-service candidates. rather, if demonstrators are allowed to compete with in-service candidates, who because of their service obligations are out of touch with theoretical studies and are not able to devote time to the preparation for the common entrance examination, they will push the other service candidates to the bottom of the merit list and will make away all the seats allocated for in service candidates. the mere fact that demonstrators are also government servants will not justify their inclusion in the category of in-service candidates considering the real object of allocating certain quota of seats for in-service candidates. we are thus of the view that exclusion of demonstrators under the rules 2008 from the definition of 'in-service candidate' cannot be held to be discriminatory and violative of article 14 of the constitution.7. in the result, we do not find any merit in these writ petitions and we accordingly dismiss the same.

Judgment:
ORDER

A.K. Patnaik, C.J.

1. The common question raised in this batch of writ petitions is whether a demonstrator should be treated as an in-service candidate for admission to the quota of seats allocated in Postgraduate Medical Courses in the Colleges under the Government of Madhya Pradesh.

2. In exercise of powers conferred by Section 10 of the Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973, the State Government has made the rules relating to admission to Post Graduate Medical (MD & MS) Courses and Post Graduate Diploma and Dental (MDS) Courses in the Medical and Dental Colleges under the State Government in the State of Madhya Pradesh, called the Madhya Pradesh Medical and Dental Post Graduate Course Entrance Examination Rules, 2008 (for short 'the Rules, 2008'). In the Rules 2008, 20% of the seats in the Post Graduate Medical Courses in the colleges under the Government of Madhya Pradesh have been allocated for in-service candidates and in Rule 1.2(d) of the Rules, 2008, an 'in-service candidate' has been defined to mean a Medical Officer of the Public Health and Family Welfare Department, who is serving under the Government of Madhya Pradesh on regular or contract basis. The Rules, 2008 provide that on the basis of performance in the common entrance examination for all the candidates, a separate merit list is to be prepared for in-service candidates and on the basis of their merit position, in-service candidates are to be called for counselling for admission to the 20% seats allocated to inservice candidates in the postgraduate medical courses in different colleges under the Government of Madhya Pradesh. The petitioners who are medical graduates and are working as Demonstrators in different Medical Colleges under the Government of Madhya Pradesh and are not working as Medical Officers of the Public Health and Family Welfare Department, thus, cannot be considered for admission to the quota of 20% seats allocated for in-service candidates and can only be considered for admission to the open seats as per their merit position in the merit list. Aggrieved by the definition of in service candidate in Rule 1.2(d) of the Rules 2008, the petitioners have filed these writ petitions under Article 226 of the Constitution for declaring the definition of 'in-service candidate' in the Rules 2008 as discriminatory and violative of Article 14 of the Constitution.

3. Mr. Rajendra Tiwari, learned Senior Counsel appearing for the petitioners in Writ Petition Nos. 4608/2008 and 4834/2008, Mr. P.K. Tiwari, learned Counsel for petitioner in Writ Petition No. 4071/2008 and Mr. Aditya Sanghi, learned Counsel for the petitioners in Writ Petition Nos. 3056/2009 & 3069/2009, submitted that the demonstrators are also in the service of the State Government and are Government servants to whom the Fundamental Rules are applicable. Mr. Sanghi submitted that in Ram Krishna Dalmia v. Justice Tendolkar : [1959]1SCR279 , the Supreme Court has laid down the principles to be borne in mind by the Court in determining the validity of a statute on the ground of violation of Article 14 and has held that Article 14 forbids class legislation but does not forbid reasonable classification for the purpose of legislation but in order to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. He submitted that although there is a presumption of constitutionality in favour of the statute, this presumption cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. He submitted that the only justification given in the return filed by the respondents is that in the M.P. Medical and Dental Post Graduate Course Entrance Examination Rules, 2007 (for short 'the 2007 Rules'), demonstrators were treated as in-service candidates but Rule 9.2 (a) of the 2007 Rules provided that the demonstrator can undergo postgraduate course on the subject in which they are working, but the Division Bench of this Court has found Rule 9.2 (a) of the 2007 Rules ultra vires in the case of Dr. Shailendra Kumar Patna v. State of M.P. ILR 2007 916. He submitted that this cannot be a valid reason for excluding demonstrators from the definition of 'in-service candidate' under the Rules 2008.

4. Mr. Samdarshee Tiwari, learned Government Advocate, on the other hand, relied on the return filed on behalf of the respondent No. 1 in W.P. No. 4608/2008 and submitted that the Medical Officers of the Public Health and Family Welfare Department render services in rural and tribal areas and hence they are treated as in-service candidates and 20% of the seats in post graduate medical courses in the colleges under the Government of Madhya Pradesh are allocated for in-service candidates to enable them to upgrade their qualifications and skills so that they can render better services to the people of the State. He submitted that the justification for treating medical officers of the Public Health and Family Welfare Department who are working in the rural and tribal areas is given by the Supreme Court in State of M.P. and Ors. v. Gopal D. Tirthani and Ors. : AIR2003SC2952 . He relied on Paragraph 21 of the aforesaid decision of the Supreme Court in Gopal D. Tirthani and Ors. (supra), in which the classification of in-service candidates has been held to satisfy the twin test of intelligible differentia and such intelligible differentia having a rational relation with the object sought to be achieved. He submitted that demonstrators who really teach in medical colleges do not work in the rural and tribal areas and can always compete for the open seats and cannot be grouped together with in-service candidates who compete between themselves for the 20% seats allocated for in-service candidates in the post graduate courses in the medical colleges under the Government of Madhya Pradesh.

5. We have considered the submissions of the learned Counsel for the parties and we find that the real object of allocating a certain percentage of seats in post graduate medical courses for in-service candidates is that such in-service candidates on account of the nature of their duties in service remain out of touch with theoretical studies and are, therefore, not in a position to compete with fresh medical graduates for the open seats and with a view to enable such an in-service candidate to upgrade their qualifications and skills, a certain percentage of the seats in post graduate courses are allocated for in-service candidates and the competition for admission to this quota allotted for in-service candidates is limited to in-service candidates. This will be clear from the following portion of Paragraph 31 of the judgment of the Supreme Court in AIIM Students' Union v. AIIMS and Ors. : AIR2001SC3262 , quoted in Para 20 of the judgment of the Supreme Court in Gopal D. Tirthani and Ors. (supra):

The candidates in both the categories were medical graduates. Some of them had done graduation some time in the past and were either picked up in the Government service or had sought for joining Government service because, may be, they could not get a seat in post graduation and thereby continued their studies because of shortage of seats in higher level of studies. On account for their having remained occupied with their service obligations, they became detached or distanced from theoretical studies and therefore could not have done so well as to effectively compete with fresh medical graduates at the PG entrance examination. Permitting in-service candidates to do post graduation by opening a separate channel for admittance would enable their continuance in Government service after post graduation which would enrich health services of the nation. Candidates in open category having qualified in post graduation may not necessarily feel attracted to public services. Providing two sources of entry at the post graduation level in a certain proportion between in-service candidates and other candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. The object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to provide protection and encouragement to one at the entry level.

In Gopal D. Tirthani and Ors. (supra), after quoting the aforesaid passage, the Supreme Court has further held in Para 21 as reported in the SCC that class of in-service candidates satisfies the twin tests of reasonable classification and there is nothing wrong in the State Government setting apart a definite percentage of educational seats at post graduation level consisting of degree and diploma courses exclusively for the in-service candidates.

6. Considering the law as laid down by the Supreme Court in AIIM Students' Union and Gopal D. Tirthani (supra), demonstrators cannot be classified as in-service candidates for the purpose of admission to the seats allocated for in-service candidates in postgraduate medical courses. Demonstrators admittedly teach in the medical colleges in the Government of Madhya Pradesh and, therefore, remain in touch with theoretical studies and can effectively compete with fresh medical graduates taking the post graduate entrance examination. In other words, their service obligations do not warrant them to work in hospitals in urban, rural and tribal areas so as to prevent them from studying and preparing for the post graduate entrance examination. Demonstrators can compete for the open seats and need not be considered for admission to the quota allocated for in-service candidates. Rather, if demonstrators are allowed to compete with in-service candidates, who because of their service obligations are out of touch with theoretical studies and are not able to devote time to the preparation for the common entrance examination, they will push the other service candidates to the bottom of the merit list and will make away all the seats allocated for in service candidates. The mere fact that demonstrators are also Government servants will not justify their inclusion in the category of in-service candidates considering the real object of allocating certain quota of seats for in-service candidates. We are thus of the view that exclusion of demonstrators under the Rules 2008 from the definition of 'in-service candidate' cannot be held to be discriminatory and violative of Article 14 of the Constitution.

7. In the result, we do not find any merit in these writ petitions and we accordingly dismiss the same.