A. K. PATNAIK, C.J. :- In this writ petition under Art. 226 of the Constitution, the petitioner has challenged the vires of Rules 10(2), 10(3) and 20(9) of the Madhya Pradesh Medical and Dental Post-Graduate Course Entrance Examination Rules, 2007 (for short 'the Rules').

2. The facts briefly are that the petitioner, after passing MBBS degree, was selected and appointed as an Insurance Medical Officer Class II in ESI Service under the Department of Labour, Government of Madhya Pradesh on 4-7-2000. After completing the period of probation of two years, he was confirmed as Insurance Medical Officer Class II on 15-4-2004.

3. For admission to Post-Graduate Medical Degree and Diploma Courses, the State Government has framed the rules under S. 10 of the Madhya Pradesh Chikitsa Shiksha Sanstha Niyantran Adhiniyam, 1973. Under the Rules, a common entrance examination for admission to Post-Graduate Medical Degree/Diploma courses is to be held for both in-service candidates and open candidates but the merit lists of in-service and open candidates are to be prepared separately. Rule 10(1) of the Rules provides that the in-service candidates will have to secure minimum qualifying marks in the Pre-PG Entrance Examination and the Professional Examination Board will prepare and declare separate merit list of selected in-service candidates. Rule 10(1) further provides that total marks for the examination for in-service candidates shall be 200 and in-service candidates declared successful will be considered for final merit list by addition of marks calculated on the basis indicated in Rr. 10(2) and 10(3) of the Rules. In Rule 10(2), it is provided that inter se merit of the selected in-service candidates shall be fixed up by adding marks of weightage for their services rendered in rural areas and the candidates serving in rural areas will get maximum of 50 marks allotted in the manner provided in Cls. (a), (b), (c) and (d) of R.10(2) of the Rules. Rule 10(3) provides that a Demonstrator will be given 10 marks for each year of service after 5 years of minimum regular service rendered and the maximum limit of such marks shall be 50 for 5 years.

4. The grievance of the petitioner in the writ petition is that candidates who have served in rural areas and candidates who have worked as Demonstrators have been given marks up to maximum of 50 out of 200 marks in accordance with Rr. 10(2) and 10(3) of the Rules. As a consequence, although the petitioner, who has not served any rural area and is not a Demonstrator, has secured higher marks than such candidates who have served in rural areas and as Demonstrator, in the final Common Entrance Examination, his position in the final merit list has gone substantially down. The petitioner therefore has prayed that the provisions of Rr. 10(2) and 10(3) of the Rules be declared as ultra vires Art. 14 of the Constitution. The further grievance of the petitioner in the writ petition is that in R. 20(9) of the Rules, it is provided that counselling of in-service candidates will be done first and category-wise in the sequence provided therein i.e. (A) ST category, (B) SC category, (C) OBC category and (D) Unreserved category, but it is also provided in R. 20(9) of the Rules that seats remaining vacant after category-wise counselling will be made available unchanged to the open category (non-service) candidate of same category and thus seats of a particular reserved category remaining vacant after counselling of in-service candidates of that particular category are not made available to in-service candidates of un-reserved category and the petitioner, who belongs to unreserved category, suffers discrimination in the process. Hence, the petitioner has also prayed for declaring R. 20(9) of the Rules as ultra vires Art. 14 of the Constitution.

5. Mr. Ajay Mishra, learned senior counsel for the petitioner submitted that in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad (1986) 3 SCC 727 : (AIR 1986 SC 1