1. This petition coming up for further orders, by consent of parties, is taken up for final disposal at the stage of preliminarily hearing after notice to respondents.
2. The petitioner is a Doctor serving in the State Medical Service since 24-3-1971. When she was working as a Lady Medical Officer at Primary Health Centre, Handigannur, Taluk Haveri, District Dharwad, on 27-1-1982 she received an intimation by which she was directed to apply for Post Graduate Diploma Course as an in-service candidate. She sent her application in accordance with the instructions received as per the Official Memorandum dated 22nd August, 1931. She sent another application for Post Graduate Degree Course in Obstetrics & Gynaecology in private medical college for a seat available to the Government in such colleges. On 13-10-1981. She received a letter from the Government enquiring from her whether she would prosecute her study if she is selected for Post Graduate Diploma Course. The petitioner expressed her willingness to do so, indicating her preference to study at Mysore Medical College at Mysore or at Karnataka Medical College at Hubli. On 27-1-1982, the petitioner received an order dated 18-1-1982 in which the selected candidates were indicated. The name of the petitioner is shown at serial No. 109- Selected for D. C. H. Post Graduate Diploma course in Clinical Pathology. The petitioner, aggrieved by the same, has approached this Court under Arts 226 and 227 of the Constitution for a direction in the nature of a writ of Mandamus to direct respondents 1 and 2 to select the petitioner for Post Graduate Diploma Course in Obstetrics and Gynaecology and in the alternative to select her for Post Graduate Degree Course in the same subject.
3. It is the petitioner's contention that respondent 4 to 9, who have all been selected to undergo Post Graduate Diploma or Degree Courses in Obstetrics and Gynaecology are less meritorious than her and therefore she should have been selected to one of the seats available in that subject for the Post Graduate Diploma or Degree Course and the first respondent Selection Committee not selecting her has therefore discriminated.
4. Respondents 1, 2 and 3 have entered appearance through Government Pleader while respondents 4 and 6 are represented by counsel. Other respondents, 5, 7, 8 and 9 remained absent though office note indicates that in respect of some of them postal acknowledgment has not been received. But as the decision in this case will not affect the respondents who are not before the Court it is unnecessary to await service on the said respondents.
5. To appreciate the arguments advanced, it is necessary to set out a few other facts; The selections to Post Graduate Course in Medicine either for a Diploma or a Degree are governed by Executives Rules made by the 2nd respondent State of Karnataka in exercise of its powers under Art. 162 of the Constitution. The cases of the petitioner and others for the academic year 1981-82 are governed by what are known as Karnataka Medical Colleges Selection for Post Graduate Course Rules, 1981 as amended from time to time and brought into effect by Government Order No. HFW 68 MSF 81 dated 14th August 1981. The Rules prescribe the eligibility both for in-service candidates of the Government as well as others. Rule 3 provides for eligibility by domicile. Rule 4 provides for distribution of seats in the various colleges affiliated to different Universities in the State of Karnataka 50 per cent of the total number of seats in the Diploma Course are reserved under sub rule (1) of Rule 4 of the Rules in favour of the in-service personnel borne on the cadres of the Health and Medical Education Department to be selected and deputed to the Medical Colleges by the Government of Karnataka. In fact, we are essentially concerned with this Rule as it is not disputed by the petitioner that she applied for a seat in the Diploma course for a seat falling in this category. Rule 5 provides for reservation of seats in favour of candidates belonging to the Scheduled Casts, Scheduled Tribes, and other backward classes etc., with which we are not concerned in this petition. Rule 6 provides for Constitution of the Selection Committee. Rule 7 provides for the mode of application. Rule 8 provides for the procedure for selection. As some reliance has been placed on this rule, it is useful to notice the contents of this rule. The Selection Committee is directed to select candidates on merits in accordance with the procedure specified in the relevant Government order after working out the reservation which has to be made in favour of the classes of persons specified in Rule 5 of the Rules. In order to determine the merit, the mandate of the Rule is that the final M. B. B. S. marks in Medicine, Surgery and Obstetrics and Gynaecology should be reduced to 100 marks in respect of each candidate. Consideration of other rules is not necessary for disposal of this petition.
6. The thrust of the arguments advanced by Smt. P. G. Gowri, learned counsel for the petitioner, is that the petitioner is more meritorious than respondents 4 to 9 and therefore she should have been selected for the course for which she had shown preference. This argument is really not available to the petitioner inasmuch as the Selection Committee is not required to select candidates. Candidates are selected and deputed by the Govt. of Karnataka for 50 per cent of the seats reserved for the inservice candidates under sub-rule (1) of R. 4 of the Rules as evidenced by Annexure-A to the writ petition. The Director of Health and Family Welfare services issued a Circular by which applications were invited from in-service candidates who were qualified and eligible. The summary of the same is as follows:- The in-service candidates were required to indicate three preferences for Post Graduate Course in order of priority. In case, the candidates could not be selected for the course for which they had indicated their preference, they were cautioned that they may be selected, and if willing, for other courses. Only these applicants among the in-service candidates who gave a declaration to the above effect would be considered for deputation. The candidates were informed that the selection and deputation would be on the basis of the seniority based on Provisional Gradation List subject to the age limit which had been prescribed by the Rules themselves. Candidates from the in-service group were also required to execute a bond in favour of the Government to the effect that they would serve the State Government for a minimum period of five years after completion of the courts.
7. I have already pointed out that it is not in dispute in this petition that the petitioner is an in-service candidate for the Diploma Course with which alone we are concerned, though there is a prayer to consider her case for degree course as well. But, then it is not possible for this Court to examine her case with regard to the degree course. None of the respondents except respondent No. 9 have been selected for degree course. Respondent No. 9 who has been selected for Post Graduate Degree course in Obstetrics and Gynaecology, it is stated, has not accepted the seat according to petitioner's averment.
8. The petitioner has herself produced a true copy of her application. Against column 12 in the application she has shown her preference in the following order:
(1) D. G. O. (2) D. C. H., (3) D. A. The department Circular which is enclosed to the application at Annexure-A to the petition clearly provides for instructions and if regard is had to those instructions D. A. stands for Diploma in Anaesthesia, D. G. O stands for Diploma in Obstetrics & Gynaecology and D. C. H. stands for Diploma in Pediatrics. While in regard to Decree course no alphabetical indication is provided for except for E. N. T. In fact, there is intrinsic evidence on the regard that Post Graduate Degree course is indicated as for instance for Obstetrics and Gynaecology, by letters OBG MD.
9. In that circumstance, the prayer for a direction to consider the case of petitioner for Degree course as well should be rejected as her application could not be taken to be one for the Degree course as she only indicated by the letters in column 12 for Diploma course.
10. Smt. Gowri tried to argue that column 12 itself reads for both the courses. But her indication should be understood, to have been made in the context, on the basis of Diploma course but not with reference to Degree course. If she wanted Degree course she should have shown the same in the application as instructed in the application form itself. She has not placed material before the Court to support the contrary view. She has merely asserted that other applicants have also made similar applications. I am unable to compel at this stage, the Government to produce all the applications.
11. She has next contended that even though she was more meritorious than respondents 4 to 9 who have been selected for Diploma Courses and degree, she has not been selected. But, neither in the Rules no in the Circular is there any indication that the selection by the Government in respect of the 50 per cent of the seats reserved for Diploma course would be based on nothing but seniority according to the Provisional Gradation List subject to the age limit of 45 years. I have already pointed out that the Selection Committee was given the task of selection by merit to the unreserved seats subject to the reservations made under R. 5 and R. 4 . Therefore, the guidance for selection to the Government can only be found in the Circular which I have already referred to. It is not the case of the petitioner that she was not selected for the Diploma course but she was only given some subject other than the one she had preferred in order of priority. But that action is governed by the circular instructions by which an in - service candidate like the petitioner is bound, that while the intending applicants may indicate he preference, they may not be given those subjects and may be chosen for some other subject if the candidate is willing and the declaration also has been obtained in the prescribed application. The petitioner having made that declaration, has to accept any other subject to which she was selected, though she has not been selected for the one which she preferred.
12. Smt. Gowri urged that the declaration has violated her fundamental rights inasmuch as the petitioner being in-service candidate, she was compelled, to give such a declaration. I do not see any such violation. The 50 per cent reservation made by the Department in favour of departmental candidates clearly indicates that the Government was expending money on its employees to give training in public interest and when the employer is spending money the question of compelling anybody to undergo any particular course does not arise, if the candidate herself is willing. Once a person enters public service, such person must be governed by the conditions of service applicable. She cannot like advantage of the selection and deputation on the one hand and then go back on the Declaration given. If this view should prevail, if all applicants preferred only one subject then there would be no Doctors under other specialities at all.Therefore, I am unable to see that the declaration insisted upon in any way violates the rights of the petitioner under Art. 14, 16 or 19 of the Constitution.
13. In so far as the question of merit is concerned, I must say something. In the statement of objections filed on behalf of respondents 1 to 3, it is made clear that the Government have pursued, a policy of taking into consideration the aptitude and service rendered by the applicants along with their seniority and suitability. They have also taken into consideration the vacancies existing in the various specialities in the department with particular reference to the vacancies in taluk towns. There is no reason to disregard this assertion made in the statement of objections. If Government has pursued a policy and made its selection and deputation, this Court on the material placed by the petitioner cannot go deeper into the question to see whether any discrimination has resulted against the petitioner.
14. The learned Counsel for the petitioner has relied upon certain decisions. She has referred to the decision of the learned, single Judge of this Court in the case of Dr. Shantha v. Selection Committee, Government Medical Colleges : AIR1978Kant66 . In the said case Puttaswamy, J., has observed that the claim of the petitioner therein for Pediatrics should have been given to her as she had given preference to the subject as she had undergone Housemanship in that subject. But the selection was made under a different set of rules. Therefore, that case really does not assist the petitioner on the facts of her case here. Similarly, a decision of Allahabad High Court has been relied upon to support her assertion that the Government must be compelled to adhere to their own instructions with regard to administration, as contained in the Circular in the case of Sushil Kumar Srivastava v. Principal, Industrial Training Institute, Faizabad : AIR1981All194 ; a Division Bench of that High Court while discussing the application of the theory of doctrine of estoppel did observe that the Government should not be permitted to go back on its own administrative instructions or norms. I do not see how this observation assists the case of the petitioner. I have already pointed out that the petitioner was selected which means her seniority has been recognised. The Government in exercise of its powers has selected her for the Diploma Course having regard to the vacancies available in each of the specialities. It must be presumed that the Government has taken into consideration the service rendered by the petitioner and each of the respondents selected. Merely on the assertion of the petitioner, this Court cannot form a different opinion that the petitioner is more meritorious than respondents 4 to 9 or that the Government has not acted in good faith when there is no allegation of mala fides by the petitioner against any of the officials who were concerned with the selection and deputation of the petitioner to the course. Yet another decision of the Ag. J. C's Court of Goa (AIR 1982 Goa 1) has been brought to my notice. I do not see any new principle of law decelerated therein which this Court has already not declared in several of its judgments and that is also of no assistance to the petitioner.
15. One other observation this Court has to make is that the petitioner has declined to accept the seat offered to her in the Diploma course as she was particular in pursuing Post Graduate Course only in the subject which she had preferred. It is admitted by the learned Government Pleader that one seat in Obstetrics & Gynaecology in Diploma Course was not filled in the Post Graduate degree course as the 9 the respondent did not take the same. I have already held that the petitioner's application could not be considered as one which was made for the Post Graduate Degree Course. If the petitioner is qualified and eligible for the Diploma or Degree course, I am sure the Government will favourably consider her case.
16. For the reasons stated above, this Writ petition is rejected without rule being issued.
17. In the circumstances of the case, there will be no order as to costs.
18. Petition dismissed.