B.N. Misra, C.J.
1. Each of these applications under Article 226 of the Constitution is by a doctor in the employment of the State and challenge in each of these applications is to the weightage provided under Clause 5 (1) (b) of the Prospectus for admission into the Post-Graduate Courses at the three Medical Colleges of the State and outside the State for the Session 1981-82. As a common question has been raised in all these applications and counsel for both sides submitted common arguments at a combined hearing, we propose to dispose of all these five applications by a common judgment.
2. In all these cases except O.J.Cs. 1962 and 2294 of 1981, the facts pleaded are these. The petitioners are Medical Graduates in the employment of the State. While the petitioner of O.J.C. No. 2010 of 1981 is a member of the Scheduled Caste, the petitioner in each of the other two cases is not. Medical service under the State Government is divided into two broad categories: (a) teaching posts confined to the three Medical Colleges being the S.C.B. Medical College at Cuttack. the M.K.C.G. Medical College at Berhampur and the V.S.S. Medical College at Burla affiliated to the Utkal, Berhampur and Sambalpur Universities respectively and (b) service in the periphery which is the other category consisting of employment both in urban and semi-urban areas as also rural areas, Under the service rules, service was interchangeable between the two broad calegories until some years back. but by rules made under the proviso to Article 309 of the Constitution, such practice has been abandoned. Employment in the two categorries, therefore, has now become separate and independent of each other, Each of these three petitioners applied for seats in the Post-Graduate Course in terms of the Prospectus for the 1981-82 session and none of them has been selected. In these three applications, challenge is mainly to the provision for weightage in the prospectus which according to the petitioners has been utilised to boost up claim of others in preference to theirs. The petitioner in O.J.C. 1'962 of 1981 did not apply for admission, but simply challenges the Prospectus providing weight-age. It is he who challenges the provision in Clause (ii) (c) of paragraph 1 of the Prospectus where two seats have been reserved for Medical Officers who have become unsuccessful in Post-Graduate examinations outside the State. The petitioner in O.J.C. No. 2010 of 1981 has raised an additional contention namely, though 15 per cent of the seats are stipulated to be reserved for Scheduled Castes candidates, while implementing this policy, adequate reservation has not been made; and if subject wise reservation had been made, the Scheduled Castes candidates would not have been prejudiced at all and they would have got their preferences in respect of the 15 per cent seats.
In O.J.C. No. 2294 of 1981, the petitioner, apart from being a Medical Graduate, possesses Post-Graduate M.S. Degree and is a Clinical Tutor in the Department of Neuro-Surgery In the S.C.B. Medical College, Cuttack. In 1981-82 provision for the first time was made for teaching facility in the super speciality, i.e. M.Ch. in Neuro-Surgery. The petitioner applied for being selected for undergoing such course. He has alleged that he was a more meritorious student than the two who have been selected, but he was not selected mainly on account of the provision for weightage for service in rural area. He has. therefore, joined the other group of candidates who wanted admission into the Post-Graduate course challenging the provision for weightage. He has pleaded that the Professor of the Department as also the Director of Health have recommended that as against two seats in the super speciality for which provision had been made, an additional seat be created and the petitioner be admitted as he is eminently suitable for getting the super speciality degree.
3. In the counter-affidavits filed in these cases which are more or less on the same lines, it has been pleaded that provision for weightage in Clause 5 (1) (b) of the Prospectus was necessary in view of the fact that majority of the posts of Medical Officers is in the rural areas. Doctors do not accept postings in rural areas and when transferred avoid to accept such posting. Under the rules, for promotion to different posts of specialists as also to posts of Sub-Divisional Medical Officers and Chief District Medical Officers, Post-Graduate qualification is necessary. Post-Graduate degree is also necessary for promotion to the rank of Class I in Medical Service under the Directorate. With a view to giving proper incentive and appropriate bias for acceptance of posting in rural areas and with a view to providing due promotional prospects and for increasing efficiency of the medical service in the rural areas and in keeping with the recommendation of the Indian Medical Council, provision was made in Clause 5 (1) (b) of the Prospectus. Such weightage is not only reasonable and wholesome but is in keeping with the well-accepted policy of Government that the majority of the citizens of India who live in the rural areas should have adequate medical care. It has next been pleaded that the reservation of 15 per cent of the Post-Graduate seats for members of the Scheduled Castes and 5 per cent thereof for members of the Scheduled Tribes is a reasonable reservation and since such reservation is in keeping with the constitutional mandate, there can be no challenge to it. In subjects where there are less than 6 seats in all, there can be no reservation. Therefore, subject-wise reservation has been provided where more seats are available. keeping the ratio of reservation in view. The general scheme is not open to attack.
4. At the hearing, counsel for the petitioners reiterated these submissions. Learned Government Advocate appearing for the State and the public officers contended;--
(i) Weightage had been given in accordance with the recommendation of theIndian Medical Council;
(ii) In providing weightage, no discriminatory treatment has been shown and, at any rate, there is a clear difference between the two groups, namely, teachers in the Medical Colleges and Doctors serving in the periphery in non-rural areas on one side and Doctors serving in the periphery in rural areas on the other. Cushioning provided by the medium of weightage is not open to attack;
(iii) Provision for weightage is a public necessity and is in the larger interest of the State;
(iv) As the number of seats provided in any subject is based upon the recom-mendation of the Indian Medical Council which prescribes an approved proportion of teacher-student strength, there can be no direction for enhancement of seats at this stage;
(v) Selections have already been made and the Post-Graduate study has already commenced. Relief if granted to the petitioners at this stage would disturb the study and a direction to admit the petitioners would keep away several others who but for the weightage would have been preferred to the petitioners.
5. We shall now proceed to examine the correctness of the rival contentions. But before we touch these points directly, we would like to make certain generalobservations for indicating what should be the appropriate attitude with which these questions should be looked at. Medical assistance is an indispensable necessity for citizens of a civilized country. Indisputably, bulk of the citizens in India live in the countryside, where medical facility is not adequate, number of hospitals is few and many of them are not appropriately manned. Judicial notice can be taken of the position that there is an egalitarian bias and educated people including doctors prefer to be in urban and semi-urban areas and do not like to go to the countryside.
It is in the general interest of the country as also the people that the most suited people are given facilities for obtaining the highest of qualifications so that society may be best enriched. As was pointed out by the Supreme Court in the case of Dr. Jagdish Saran v. Union of India, AIR 1980 SC 820 (Para 16),
'...... Anyone anywhere, humble or high, agrestic or urban, man or woman, and whatever his religion or irreligion. shall be afforded equal chance for admission to any secular educational course or school for cultural growth, training facility, speciality or employment. Each according to his ability, is of pervasive validity, and it is a latent, though radical, fundamental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising to the peak.........'
We do not dispute that the philosophy and pragmatism of universal excellence through universal equal opportunity is part of our culture and constitutional creed. But as the Supreme Court pointed out in the very same case (Para 17).
'This norm of non-discrimination, however, admits of just exceptions geared to equality and does not forbid these basic measures needed to abolish the gaping realities of current inequality afflicting 'socially and educationally backward classes' and 'the Scheduled Castes and the Scheduled Tribes'.........'
The Indian Medical Council recommended that
'Other conditions being equal, weight-age may be given to persons who have worked in rural areas or the Armed Forces Medical Services for at least two years.'
This recommendation emphasised upon 'other conditions being equal.' The recommendation did not refer to the extent of weightage. Clause 5 (1) (b) of the Prospectus provides:--
'Weightage will be given for service in rural area in respect of in-service doctors working under the Government of Orissa. They will be given credit of 3 marks for each completed year of rural service, subject to a maximum of 15 marks.'
Rural service has been explained to mean service rendered in areas other than municipal areas or notified area councils. Counsel attacking weightage did not eon-tend that provision for weightage as such was bad and not sustainable. The gravamen of the attack was that to make provision for weightage in a case of this type where the place of posting was beyond the control of the employee was bound to lead to discrimination. It was also contended with considerable emphasis that weightage of fifteen per cent was excessive and was likely to militate against brilliance or excellence in University examinations.
Clause 5 (1) (b) provides that the total marks in M.B.B.S. examination should represent 100 for the purpose of selection. These 100 marks represent, as alleged by the petitioners, and not controverted by the opposite parties, 3000 marks allotted to the different examinations in the M.B.B.S. course. When 3000 is telescopised as 100. addition of 1'5 marks by way of weightage is, in our opinion, somewhat excessive. There may be instances where top-ranking students may have to be overlooked when full weightage of 15 marks is given on account of 5 years of service in rural area. For instance, a student who has secured more than 70 per cent marks in the M.B.B.S. examination will have to be bypassed to accommodate a Second Division student securing less than 60 per cent marks. While we do not accept the petitioners' challenge to weightage on principle, we must point out that weightage of 15 per cent is somewhat excessive. We are inclined to think that the State Government is also anxious to see that deserving and brilliant students get opportunity to qualify themselves in the Post-Graduate courses so that efficiency in public service improves. That being the position, provision for weightage should be so made that while the social purpose of creating a bias for rural service works out, efficient and top-ranking students with a bright career should not be bypassed. Possibly, weightage between 5 per cent and 10 per cent should be worked out so that the competition for selection may be confined to at least First Division students and those securing less than 60 per cent marks may not come into the arena through the medium of weightage. This, however, should be left to the State Government to be worked out in an appropriate way and we cannot take the responsibility of deciding what exactly should be the weightage. The recommendation of the Medical Council had clearly indicated that weightage should be available when other conditions are equal. This obviously means that when candidates are almost of the same excellence, weightage could be extended on the basis of service in rural area. In our opinion, the condition had been indicated so that by mere weightage merit may not be brushed aside and the process of selection may not fail to serve the social interest. It is true that postings are not in the hands of the employees, and the State decides the place of posting. In the event of one getting posted in the rural area, credit of weightage is available. The petitioners' counsel harped upon the position that the chance to get weightage thus depended upon the place of posting and since posting was beyond the control of the employee, entitlement to weightage was a matter of chance. We have not been able to see any force in this contention. Keeping the exigencies of public service in view, postings are made. At the time when a Doctor is posted, the fact that he is or is not entitled to weightage for Post-Graduate study does not come into the picture for consideration- Since we have already indicated that weightage as a matter of law cannot be objected to but it should be within reasonable limits, we do not think we should accept the contention that weightage per se is discriminatory.
6. We may next deal with the question of reservation. In paragraph 1 (ii) (a) of the Prospectus, 15 per cent of the seats have been reserved for Scheduled Castes and 5 percent for Scheduled Tribe candidates. It has also been indicated that the reservation would be in respect of 22 seats in the direct quota and 23 in the in-service quota out of the total of 226 seats-Reservation has also been carried to the specialities where the number of seats in the specialities is substantial While the total number of reserved seats has been indicated, the subjectwise break up in respect of reservation does not reach that number. On this basis a contention has been advanced that for implementing reservation adequate care has not been taken. The learned Government Advocate has taken the stand that reservation has been made in terms of the constitutional requirement, but in subjects where the total number of seats is less than 6 or 7, it has not been possible to make any reservation. According to him, the contention advanced on behalf of the petitioner in O.J.C. No. 2010 of 1981 that the State Government has failed to implement reservation should not be accepted in the special facts of the case. We are inclined to accept the submission.
There is absolutely no justification for reserving 2 seats for Medical Officers who have become unsuccessful in Post-Graduate examination outside the State. This is a premium on incompetency, and we agree with the submission advanced at the bar that such reservation should not be provided for particularly when the total number of seats is limited and there is keen demand for opportunity to meritorious students for being provided the facility.
7. The next contention is as to whether at this stage we should interfere in the matter and allow the petitioners to get admitted. There is no dispute that the selection has been on the basis of weightage. Yet. we have no clear picture as to which candidate on the basis of weightage has been preferred to the petitioners. We have not held that weight-age is totally bad, nor have we been able to indicate what exactly the weight-age should be. That question has been left to the State Government to determine on expert advice. In these circumstances it becomes difficult for us to direct the petitioners to be admitted by deleting weightage or merely on the basis of their performance in the M.B.B.S. examination. We suggest that for the coming years well in advance the Prospectus be published and adequate provision be made regarding weightage keeping what we have indicated above in view.
8. O.J.Cs. 2010, 2115, 1962 and 2214 of 1981 must in the circumstances indicated be dismissed.
9. We shall now come to O.J.C. No. 2294 of 1981. We have already taken note of the position that the petitioner is interested in admission into the super speciality of Neuro-Surgery. Provision for 2 seats has been made. The Head of the Department of the S.C.B. Medical College in the speciality as also the Director of Health are of the view that the petitioner is eminently suitable and if he is given an opportunity of qualifying himself in the super speciality, he would be able to render better service in the College. With the existing arrangements, according to the Professor, the petitioner could be accommodated. This position has not been refuted seriously. In the circumstances, we allow the application and direct that the petitioner be admitted into the super speciality in Neuro-Surgery subject again to the University Regulations regarding admission.
10. The net result, therefore is that O.J.Cs. 2010, 2115, 1962 and 2214 of 1981 are dismissed while O.J.C. No- 2294 of 1981 is allowed. Let a writ be issued in the last case for implementing the direction. The petitioner in that case is directed to appear before the appropriate authority within one week for purposes of admission subject to clearance by the University. Petitions dismissed and one petition allowed.
11. There would be no order for costs in these cases.
12. I agree with my Lord the Chief Justice.