DR. ANITHA GOPINATHAN v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 10[TH] DAY OF MARCH 2022 / 19TH PHALGUNA, 1943** ## **WP(C) NO. 21489 OF 2021** ## **PETITIONER:** DR.ANITHA GOPINATHAN AGED 39 YEARS W/O. RENJITH RAJAN, ASSISTANT DENTAL SURGEON, DISTRICT HOSPITAL, CHENGANNUR, ALAPPUZHA-689 121, RESIDING AT ANASWARA, PRAYAR NORTH, PRAYAR P.O., ALAPPUZHA-690 547 BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY THULASI K. RAJ ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVAANANTHAPURAM-695 001 3 COMMISSIONER OF ENTRANCE EXAMINATION, 5TH FLOOR, KSHB BUILDING, SS KOVIL ROAD, SANTHI NAGAR, THIRUVANANTHAPURAM,KERALA-695 001 4 DIRECTOR MEDICAL DUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., MEDICAL COLLEGE , KUMARAPURAM RD, CHALAKKUZHI, THIRUVANANTHAPURAM, KERALA-695 011 5 DENTAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, DENTAL COUNCIL OF INDIA, AIWAN-E-GALIB MARG, KOTLA ROAD, TEMPLE LANE, OPP. MATA SUNDARI COLLEGE FOR WOMEN, NEW DELHI-110 002 6 NATIONAL MEDICAL COMMISSION, REPRESENTED BY ITS SECRETARY, PHASE-I, DADA DEV MANDIR WP(C) NO. 21489 OF 2021 2 RD, BLOCK P, SECTOR 8 DWARAKA, DWARAKA, NEW DELHI,DELHI-110 077 7 DR.BABU.E.C., ASSISTANT DENTAL SURGEON, TALUK HOSPITAL, CHELAKKARA, THRISSUR-680 586 8 DR.RAFI.A.N., ASSISTANT DENTAL SURGEON, CHC KESAVAPURAM, KILIMANOOR, VELLALLOOR-695 601 9 DR.RAJANI.E.R. ASSISTANT DENTAL SURGEON, GENERAL HOSPITAL, CHANGANASSERY, NEAR KSRTC , GOVT HOSPITAL ROAD, CHANGANASSERY, KOTTAYAM, KERALA-686 101 10 DR. ABDURASHEED EDAKKOD MATHAMKUTH, ASSISTANT DENTAL SURGEON, CHC AREACODE, MALAPPURAM-673 639 BY ADVS. SRI.P.G.PRAMOD, GOVERNMENT PLEADER SRI.PRAKASH M.P., SC, DENTAL COUNCIL OF INDIA SRI.TITUS MANI, SC SRI.P.K.MANOJKUMAR SMT.SMITHA S.PILLAI SMT.ALICE THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 21489 OF 2021 3 ## **P.V.KUNHIKRISHNAN, J** **------------------------------W.P.(C)No. 21489 of 2021 -------------------------------Dated this the 10[th] day of March, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) To issue a writ of certiorari quashing clause 11.7 of Ext.P6 Prospectus to the extent to which it says that inter-se seniority of physical service will be the criterion for selection and that is the basis on which rank list will be prepared;_ _(ii) To issue a writ of certiorari quashing Exhibits P12 and P13 if and to the extent to which it relates to candidates included in service quota;_ _(iii) To issue a writ of mandamus directing the respondent no.3 to publish the provisional allotment list for admission to the NEET MDS Course 2021 in the service quota based strictly in accordance with the merit of the candidates i.e the rank obtained in the NEET MDS Rank list 2021 and not based on length of service;_ _(iv) To declare that clause 11.7 of Ext.P6 Prospectus to the extent to which it says that inter-se seniority of physical service will be the criterion for selection and that is the basis on which rank list will be prepared is unjust, illegal and is violative of the MDS Regulations, 2017;_ WP(C) NO. 21489 OF 2021 4 _(v) To declare that the petitioner is entitled to be considered in the in-service quota in NEET MDS Course 2021 based on her rank in the NEED MDS rank of 1974;_ _(vi) To issue such other orders, directions or writs as may be prayed for under the facts and circumstances of the case.”[SIC]_ 2. When this writ petition came up for consideration on 27.10.2021, this Court passed the following order: _“Admit._ _Government Pleader takes notice for respondents 1 to 4. Respective Standing Counsel take notice for respondents 5 and 6. Advocate Aravind Ghosh takes notice for respondents 7, 9 and 10. Issue urgent notice by speed post to the 8[th] respondent._ _2. The challenge is against Clause 11.7 of Ext.P6 Prospectus for admission to the Post Graduate Courses in Dental Surgery (MDS-Master of Dental Surgery) in Dental Colleges in Kerala, 2021, which provides that inter se seniority in service will be a criteria for selection to MDS Course. The question whether admission can be made to the inservice quota based on inter se service seniority of the eligible candidates came up for consideration before the Hon'ble Apex Court in Civil Appeal Nos.297 to 298 of 2015 and the Hon'ble Apex Court, as per Ext.P11 judgment dated 12.01.2015, held that merit alone can be the basis of_ WP(C) NO. 21489 OF 2021 5 _admission among candidates belonging to any given category. The Hon'ble Apex Court held that when the inservice candidates belong to one category, their inter se merit cannot be overlooked only to promote seniority which has no place in the scheme of MCI Regulations. Prima facie, Clause 11.7 of Ext.P6 Prospectus goes against the law laid down by the Apex Court in Ext.P11 judgment._ _3. The learned Government Pleader asserted that the Hon'ble Apex Court in the judgment in_ _**Tamil Nadu Medical Officers' Association and others v. Union of India and others** [(2021) 6 SCC 568] has held that the observations in the case of_ _**Sudhir N.** (Ext.P11 judgment) that Regulation 9 is a complete code in itself may not be construed with respect to providing reservation and/or making special provision like providing separate source of entry for inservice candidates within the State Quota and subject to fulfillment of other criteria fixed and provided by the MCI._ _4. A perusal of the judgment in_ _**Tamil Nadu Medical Officers' Association and others** (supra) would indicate that the question that was considered in the said judgment was whether the State has legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to Post Graduate Degree/Diploma Courses, in exercise of powers under Entry 25, List III._ _5. When Regulation 9(1) of the Post Graduate Medical Education Regulations, 2000 provides that students for Post Graduate Medical Courses shall be_ WP(C) NO. 21489 OF 2021 6 _selected strictly on the basis of their academic merit, the sustainability of adoption of any other criteria like seniority in service is doubtful._ _6. In the circumstances, there will be an interim order staying the operation of Clause 11.7 of Ext.P6 Prospectus, pending final disposal of the writ petition. There will be a further direction to the 3[rd ] respondent to provisionally include the petitioner in the service quota in the provisional allotment list to be published, if the petitioner is otherwise entitled based on her rank in the NEET - MDS, 2021.”_ 3. The above order was challenged by the State before the Division Bench of this Court by filing Writ Appeal No.1466/2021. The Division Bench refused to interfere with the above order and dismissed the Writ Appeal. 4. Based on the interim order dated 27.10.2021, the authority concerned already allotted a seat to the petitioner and she is pursuing her studies. Today when this writ petition came up for consideration, the counsel for the petitioner submitted that the interim order can be retained and the writ petition can be disposed of. 5. The learned Government Pleader on the other WP(C) NO. 21489 OF 2021 7 hand submitted that, if this Court is passing such an order, the question raised in this writ petition may be left open. Therefore, this writ petition is disposed of retaining the interim order dated 27.10.2021 and leaving open all the legal contentions raised in this writ petition. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 21489 OF 2021 8 ## **APPENDIX OF WP(C) 21489/2021** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RANKED LIST BEARING NO.726/12/SSIV DATED 31.12.2012 EXHIBIT P2 TRUE COPY OF THE APPOINTMENT DETAILS OF THE PETITIONER DATED 17.03.2017 EXHIBIT P3 TRUE COPY OF THE ADMIT CARD OF THE PETITIONER BEARING ROLL NO.2055212811 EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGE OF THE RESULT OF NEET-MDS 2021 EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGEMENT PAGE DATED 01.10.2021 EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS ALONG WITH THE G.O(MS) NO.175/2021/H & FWD DATED 04.10.2021 EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF MDS COURSE REGULATIONS 2017 EXHIBIT P8 TRUE COPY OF THE APPOINTMENT CHART DATED 06.09.2013 OF THE 7TH RESPONDENT EXHIBIT P9 TRUE COPY OF THE APPOINTMENT CHART DATED 07.02.2017 EXHIBIT P10 TRUE COPY OF THE PRESS NOTE BEARING NO.CEE/1999/MDS-2021/TA4 DATED 02.10.2021 EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF THE APEX COURT IN SUDHEER AND ORS V.STATE OF KERALA AND ORS, CIVIL APPEAL NOS 297298/2015 WP(C) NO. 21489 OF 2021 **==> picture [7 x 10] intentionally omitted <==** EXHIBIT P12 TRUE COPY OF THE KERALA STATE PROVISIONAL RANK LIST DATED 05.10.2021 EXHIBIT P13 TRUE COPY OF FIRST PHASE ALLOTMENT LIST DATED 05.10.2021 RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE