The Judgment of the Court was delivered by

M.R Calla, J.:— All these four writ petitions have been filed by the Doctors working as Civil Assistant Surgeons (CAS) in the Government of Rajasthan as members of the Rajasthan Medical & Health Service under Rules of 1963. All these Doctors are desirous of the selection for the Post Graduate i.e MD/MS Courses conducted by the University of Rajasthan and to appear in Pre-P.G Examination for that purpose as against the seats reserved under Clause (c) (for in service CAS Candidates) of the Ordinance 278-E of the University of Rajasthan which lays down:

“(I) Total Number of Seats

(II) Reservations.

(III) Selection of Candidates.

(IV) Eligibility for Admission.”

2. The Writ Petition No. 1270 of 1993 has been jointly filed by 9 Doctors viz. Dr. Anil Nair, Dr. Ramesh Sharma, Dr. Subhash Bansal, Dr. Sandeep Sharma, Dr. Rahul Saini, Dr. Shrawan Chopra, Dr. Mahesh Chand Singhal, Dr. Ashok Kumar Jain & Dr. Mahesh Kumar Goyal.

3. The Writ Petition No. 1338 of 93 has been filed by Dr. Surendra Kumar Garg.

4. The Writ Petition No. 1502 of 93 has been filed by Dr. Moti Asnani and Dr. Kishore Kumar Tanwani.

5. The Writ Petition No. 1545 of 93 has been filed by Dr. Suresh Garg and Dr. Rajendra Kumar Agrawal.

6. All these petitioners through these four writ petitions based on identical facts have raised common grievance involving the common question of law for consideration and, therefore, all these four writ petitions are being decided by this common judgment and order.

7. According to the averments made by the petitioners, all these petitioners are working as CAS Doctors in the service of Government of Rajasthan under the Rajasthan Medical & Health Service Rules, 1963 and all of them have been selected by the RPSC. Their grievance is that their candidature is not being entertained for the Pre-Graduate Entrance Examination for MS/MD Courses/Post Graduate Courses against the quota reserved for in service Doctors on account of the provisions contained in Ordinance 278-E of the University of Rajasthan and hence they have sought a declaration that the Ordinance 278-E of the University of Rajasthan be declared to be ultra vires of Articles 14 & 16 of the Constitution of India so far as it requires 5 years' experience of working as CAS Doctors after selection through RPSC. The grievance of the petitioners is that they have 5 years' experience of working as CAS although, they don't have such experience for a period of 5 years' after selection through RPSC The relevant portion of Ordinance 278-E of the University of Rajasthan he purpose of the case at hand are reproduced as under:—

“O. 278-E

(I) Total Number of Seats.

Total number of seats subject-wise for various post-graduate courses of M.D and M.S will be as notified by the Principals/Head of the respective institution.

(II) Reservations.

(c) 25% of the seats, after excluding the seats to be filled in as per allocations made by the Director General of Health Services, Govt. of India, New Delhi as mentioned in clause (a) above, shall be reserved for inservice candidates of Rajasthan State Medical Serviced in the various specialities as determined and fixed from time to time by the State Government out of which 8% seats shall be reserved for inservice natural born scheduled caste candidates and 6% for natural born scheduled tribe candidates. The State Government shall communicate such numbers of seats speciality wise to the Principals of the respective Medical Colleges.

The remaining seats shall be called ‘General Seats’ and the unfilled seats from those reserved under Clauses (a), (b) and (c) above after exhausting the waiting list, shall be filled by the candidates of general category.

(III) Selection of Candidates.

(IV) Eligibility for Admission.

All candidates seeking admission to M.D and M.S Courses should have obtained registration i.e they must have completed satisfactorily one year's compulsory rotating internship after passing the final M.B, B.S examination and must have registration with the Rajasthan Medical Council.

Further,

(ii) For seats reserved for inservice candidates as referred for clause II(c) the candidates must have served the State i.e the Government of Rajasthan continuously for more than 5 years after regular appointment under Rajasthan Medical and Health Services, Rules, 1963 and should be below the age of 45 years and should have completed at least 3 years of service in the rural area of the State of Rajasthan Rural area is defined as a Rural area where Rural allowance is admissible to the doctors and should have actually served in the rural area.”

8. Mr. K.K Sharma, Advocate and Mr. Arjun Karnani, Advocate appearing for the petitioners have raised the following contentions:—

1) There is no qualitative difference in the experience gained by a Civil Assistant Surgeon prior to his selection by the RPSC and, thereafter, as required under Ordinance 278-E Clause IV(ii) that the candidates must have served the State i.e Government of Rajasthan continuously for more than 5 years after regular appointment under the Rajasthan Medical & Health Service Rules, 1963 is, therefore, unreasonable, irrational and arbitrary and that it has no nexus to the object sought to be achieved.

2) RPSC does not hold the selections regularly and, therefore, the requirement of 5 years' service after regular appointment under Rajasthan Medical & Health Service Rules, 1963 should not be made a condition of eligibility.

3) The selection for MS/MD/Post Graduate Courses are essentially and eventually made on the basis of merit in the Pre-P.G Examination and, therefore, inservice CAS Doctors should not be denied the right to compete in this selection on the ground that they do not have more than 5 years' service to their credit after regular appointment under the Rajasthan Medical & Health Service Rules, 1963.

4) That the provisions as contained in the Ordinance 278-E were introduced way back in the year 1988 but in the past years i.e 1989, 1990, 1991 and 1992 the requirement of more than 5 years service after regular appointment was not pressed and in order to aggregate the 5 years' service even the service rendered prior to selection by RPSC as CAS was counted and it is for the first time in the year 1993, that this requirement is being pressed although, such requirement under Ordinance 278-E was existing in the same form in the past year that is from 1989 to 1992 and hence petitioners are being subjected to discrimination.

5) Ordinance 278-E itself is arbitrary, unreasonable and ultra vires of Article 14 & 16 of the Constitution of India in so far as it requires 5 years' service after regular appointment under Rajasthan Medical & Health Service Rules, 1963.

6) Ancillary argument was also raised that the requirement of 3 years of service in the Rural areas is also being insisted to be in addition to the requirement of 5 years service after regular appointment and thus the total number of required years of service comes out to be 8 years which is unreasonable and wrong.

9. The respondents have traversed the petitioner's claim in the reply filed through Shri Y.C Sharma, Advocate who has submitted on behalf of the University of Rajasthan that the challenge to Ordinance 278-E(4)(ii) is not sustainable because the service rendered on ad hoc basis cannot be treated at par with the services rendered after the regular recruitment and the criteria prescribed under Ordinance 278-E laying down the requirement of 5 years of service after regular appointment cannot be said to be arbitrary or discriminatory. What class of inservice Doctors should be allowed to compete against the reserved seats and what should be the conditions of eligibility for such inservice CAS Doctors is a matter of policy which has been reflected in Ordinance 278-E and, therefore, the grievance of discrimination is wholly unfounded.

10. We have considered the submissions made on behalf of both the sides and we proceed to deal with the above referred six contentions one by one as under:—

1) Even if, it is admitted that there is no qualitative difference in the experience gained by a CAS prior to and after selection by RPSC, for the purpose of selection for the Post Graduate Courses, once it has been prescribed that the service rendered should be after regular appointment as CAS, this Court can't direct the respondent to treat the service rendered prior to the regular appointment and after regular appointment to be at par, lest it may result into discrimination. In a given case, a candidate has worked as CAS on ad hoc basis for 2 years and suppose he appears in RPSC for regular appointment as CAS in 3rd year of his service on ad hoc basis and he is selected and placed at a particular position by the RPSC in the merit list, there may be number of candidates in the same select list who have appeared in the same selection without rendering any service on ad hoc basis and they may be placed at positions higher in the merit list as compared to the candidate who has been in service on ad hoc basis for 2 years, but who has been now selected along with them but at lower position of merit. In case, the service rendered prior to selection by RPSC is allowed to be counted, the candidate with lower merit would become eligible to compete for selection for Post Graduate Courses at a point of time much earlier than those who had attained higher merit position in the very same selection and thus, the more meritorious candidates would suffer an exclusion at the hands of less meritorious candidates and it would be a case of casualty of the merit. There may be cases in which a CAS Doctor appears in the selections for regular appointment in 1st year of his service on ad hoc basis and again in the 2nd year of his service on ad hoc basis but, on both the occasions he is not selected as against it another candidate who has been selected without rendering any service on ad hoc basis in the very same selection in which the CAS Doctor working on ad hoc basis had failed in the 2nd year of his service on ad hoc basis. If, the service rendered on ad hoc basis is also counted, the candidate who had failed in the very same selection would be able to compete for the Pre. P.G Test earlier to the candidate who had been selected in the very same selection and thus, a candidate, who had established his merit over the other candidate who had failed, will be deprived of competing in Pre P.G Test where as the candidate who had failed would be also to steal a march over other more meritorious candidates and, therefore, the argument that there is no qualitative difference in the experience gained by a CAS prior to selection by RPSC and after selection by RPSC, which appears to be attractive for a moment, does not impresses us so as to hold the requirement of 5 years of service after regular appointment to be unreasonable, irrational or arbitrary. There is one more additional reason for us to take this view inasmuch as ad hoc appointment is an urgent temporary appointment under Rule 26 of Rajasthan Medical & Health Service Rules, 1963 to be given by the appointing authority or Director Medical & Health Services, whereas the regular appointment is based on the process of selection through R.P.S.C as mentioned in Part IV Rule 16 to 22 and there may be meritorious Doctors who may not even like to compete for ad hoc appointment or to join such ad hoc and urgent temporary appointment which is to last for short period. Thus, if we hold the experience gained before and after selection by RPSC to be at par, it would mean great injustice to those who did not compete for ad hoc appointment or did not join such an appointment. We were told that it was an extreme example, but once we are called upon to adjudicate the validity and correctness of a legal preposition, it can be tested and put to the touch stone only by taking extreme examples.

The object sought to be achieved in the matters of selections against reserved seats for inservice CAS Doctors is to give preference to those CAS Doctors who are able to become the mem-bers of service through regular recruitment by establishing their merit in the selection through RPSC and, therefore, in order to protect and give preference to this merit of inservice CAS Doctors the recruitment of 5 years service after regular appointments has been prescribed and there is no basis to say that it has no nexus to the object sought to be achieved. The first contention on behalf of the petitioners, therefore, fails.

11. Whether the RPSC holds the selections regularly or not is not at all germane for the purpose of fixing the criteria of certain number of years of service after regular recruitment, moreover, the non-holding of the selections by RPSC regularly is no ground to hold the criteria of certain number of years of service after regular appointment as a condition of eligibility. What class of CAS Doctors should be allowed to compete against the reserved seats is a matter of policy. If it has been considered that the financial burden of imparting Post Graduate education in case of CAS should be restricted to only those who have completed 5 years of service after regular appointment, it is certainly a matter of policy decision and the same has been reflected in the Scheme of Ordinance 278-E ad it cannot be said that such a criteria should not be made a condition of eligibility merely because, the RPSC does not hold the selection regularly, although, it cannot be said as a general preposition that the RPSC does not hold the selections regularly. According to the scheme of the rules the selections are to be held by RPSC as and when the requisition is sent to RPSC by the Government to hold the selections. RPSC may take sometime to hold the regular recruitment, but such situations are part and parcel of the exigencies of the services and the same cannot be made the basis to test the correctness, legality, validity and propriety of a condition of eligibility for competing for a higher course. The second contention on behalf of the petitioners also fails.

12. The condition of eligibility in question is only limited for competing in the Pre-P.G Test and while laying down such a condition if the candidates who have completed 5 years of service to their credit after regular appointment have been made eligible, those who do not possess 5 years such service to their credit can't make a grievance that they will be able to prove their higher merit in the Pre P.G Test. The candidates who have completed 5 years of service after regular appointment earlier than those who too could have completed such 5 years of service with them or even before them, are certainly those persons who have established their higher merit before RPSC over the candidates of latter category for the purpose of appointment to CAS and, therefore, merely because, the selection for the Post Graduate Course ultimately, depends upon the merit in the Pre-P.G Test, is no ground to entertain those candidates also who have failed to complete 5 years service after regular selection by RPSC although, they had the opportunity to do so and some of them may have in fact availed such opportunity and failed. The third contention on behalf of the petitioners is, therefore, rejected.

13. Not a single instance has been cited before us, so far as the selection of 1993 are concerned in which any candidate has been entertained who has not completed 5 years of service after regular appointment. The allegation with regard to any instances of previous years are not only irrelevant for the purpose of present selections, but are also vague rather bald and lack in material particulars and details and, therefore, there is no basis to sustain the plea of discrimination and the fourth contention on behalf of the petitioners is, accordingly rejected.

14. In view of the detailed reasons given while, considering the contentions 1, 2 & 3, this fifth contention of the petitioners that the Ordinance 278-E itself is arbitrary, unreasonable and ultra vires of Article 14 & 16 of the Constitution of India, in so far as it requires 5 years of service after regular appointment, need not detain us any more. The requirement of 5 years of service after regular appointment does not admit of any exception and we are of the opinion that had the services rendered prior to regular appointment been treated at par with the services rendered after regular recruitment, the same could have been vulnerable to the challenge of Article 14 & 16 of the Constitution of India. Ordinance 278-E under challenge in its present form cannot be held to be ultra vires either of Article 14 or of 16 and this contention also fails.

15. To us, last contention appears to be based on an unfounded apprehension of petitioners. Ordinance 278-E nowhere says that 3 years of Rural service should be rendered in addition to 5 years service after regular appointment.

16. We have gone through clause (4) (it) of Ordinance 278-E and the correct and proper interpretation and construction of the same is that in order to be eligible to compete in Pre P.G Test, CAS should have 5 years of service to their credit after regular appointment under Rajasthan Medical & Health Service Rules, 1963 and he should have completed 3 years of service in the Rural areas as CAS. Therefore, we are of the considered opinion that even if a CAS has completed 3 years of Rural service after his regular appointment and if he has completed in all 5 years of service after regular appointment, he is eligible. In other words, 3 years of Rural Service may be out of 5 years service rendered after regular appointment and, therefore, the sixth contention of the petitioners is not based on a real apprehension and it appears to be rather illusory and the same is, therefore, rejected.

17. All the contentions raised on behalf of the petitioners, therefore, fail. We do not find any merit in these writ petitions and all these four writ petitions are hereby dismissed, with no order as to costs.