Dr. Arathy Menon v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940** **WP(C).No. 14371 of 2018** ## **PETITIONER(S)** ## **-------------** **DR. ARATHY MENON., AGED 40 YEARS, W/O. DR. K.R.RADHAKRISHNAN, JUNIOR CONSULTANT (O & G), TALUK HQ HOSPITAL, PULINKUNNU, ALAPPUZHA - 688 504.** **BY ADVS.SRI.T.T.MUHAMOOD** **SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SRI.C.Y.VINOD KUMAR SRI.JAYENDRAN KOCHOTH SRI.BABU JOSEPH PYNADATH** ## **RESPONDENT(S):** ## **-------------** **1. THE STATE OF KERALA, REP.BY ITS SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. COMMISSIONER FOR ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.** **3. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM - 695 011.** **4. DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.** **BY ADV. SRI.V.MANU, SR. GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** **WP(C).No. 14371 of 2018 (V)** ## **--------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 10.04.2018 ISSUED BY THE SUPERINTENDENT, W & C HOSPITAL, ALAPPUZHA. EXHIBIT P1(A) TRUE COPY OF THE DOCUMENT CERTIFYING SERVICE DETAILS OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 09.03.2018, SHOWING THE NEET PG RANK OF THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF PROSPECTUS FOR ADMISSION TO POST GRADUATE DEGREE/DIPLOMA COURSE 2018-19. EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF KERALA STATE MERIT LIST FOR ADMISSION TO PG MEDICAL COURSE 2018 ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATION, KERALA. EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSE 2016. EXHIBIT P6 TRUE COPY OF THE G.O.(RT) NO. 1218/2018/H & FWD DATED 12.04.2018. EXHIBIT P7 TRUE COPY OF THE COVERING LETTER NO. A1-4030(1)/18 DATED 12.03.2018 SENT BY THE DISTRICT MEDICAL OFFICER (HEALTH) IN CHARGE ALAPPUZHA. EXHIBIT P8 TRUE COPY OF THE DETAILS OF MEDICAL OFFICERS, SHOWING THE RURAL AREA SERVICE RECKONED BY THE 3RD RESPONDENT.** ## **RESPONDENT(S)'EXHIBITS - NIL** **-----------------------------** ## **/TRUE COPY/** **PS TO JUDGE** **TS 01.06.2018** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.14371 of 2018 ----------------------------------------------Dated this the 30[th] day of May, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to the respondents to give appropriate rank to the petitioner in the state-wise merit list to Post Graduate Medical Degree/Diploma courses, 2018, granting incentive marks reckoning the rural area service including service as casualty medical officer in Women and Children Hospital, Alappuzha from 11.12.2007 to 18.09.2010. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is working as Junior Consultant (O & G), Taluk Headquarters Hospital, Pulinkunnu in Alappuzha District. Petitioner appeared for National Eligibility-cum-Entrance Test (NEET) for selection of candidates for admission to Post Graduate Degree/Diploma Medical courses, 2018 and she was placed in rank No.8609 in All India Level merit list. In the State level merit list, petitioner is placed in rank No.1186. 2 **W.P.(C) No.14371 of 2018** 3. According to the petitioner, being a Government Medical Officer under the Health Service Department, she is to be considered against Health Service Quota, provided she has worked 3 years in difficult remote rural area or rural area. At the time of issuing notification for NEET and at the time of issuance of Ext.P3 Prospectus, the medical officers worked in rural area were not entitled for incentive. The said incentive was re-introduced only by issuance of amendment to the Regulations of Medical Council of India by notification dated 05.04.2018. The State Government had categorized service of casualty medical officer as rural area service. It is also the case of the petitioner that, several officers were given incentive/weightage while determining their merit reckoning the casualty service as rural area service. 4. However, petitioner has not been granted incentive for rural area service considering her service as casualty medical officer in the Women and Children Hospital, Alappuzha from 11.12.2007 to 18.09.2010. If the casualty service of 2 years, 9 months and 7 days is reckoned along with the service in Pulinkunnu Hospital, the total rural area service will become 5 years, 5 months and 15 days entitling the petitioner for **W.P.(C) No.14371 of 2018** 3 incentive of 151 marks. It is the case of the petitioner that, the casualty service rendered by the petitioner was not taken into account, and therefore, the rank of the petitioner assessed by the respondents is not in accordance with the correct procedure adopted in the Prospectus. 5. A counter affidavit is filed by the 3[rd] respondent, wherein, it is submitted that, the case projected by the petitioner is dependent on Clause 7.1.3 of Ext.P5 Prospectus pertaining to the Admission to Medical PG Degree/Diploma Courses, 2016. So also, petitioner places reliance on Sec.6 of the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 [Act 29 of 2008]. The Act 29 of 2008, particularly Sec.5(4) was challenged before a Division Bench of this Court in ' _**Mohammed Riaz K.M. (Dr.) and others v. State of Kerala and others**_ ' [2011 KHC 275 : 2011 (2) KLT 294]. This Court held that the State could not make a law doing away with the requirement of in-service candidates to participate in the common entrance test for admission to PG Medical Courses and obtaining the minimum eligibility requirement prescribed by the Medical Council of India in the Regulations. 4 **W.P.(C) No.14371 of 2018** 6. So also, it is submitted that, the proposition of law so laid down is upheld by the apex court in _**'Sudhir N. and others v. State of Kerala and others'**_ [(2015) 6 SCC 685]. Further, a Division Bench of this Court in ' _**Abhilash Kumar M.P. (Dr.) and others v. State of Kerala and others**_ ' [2015 KHC 428] held that, the State could not rely on Sec.6 of Act 29 of 2008 for giving weightage marks to in-service candidates serving in rural areas. The decision in _**'Sudhir N. and others'**_ (supra) was affirmed by the apex court in ' _**State of U.P. & Ors. v. Dr. Dinesh Singh Chauhan**_ ' [(2016) 9 SCC 749]. Therefore, according to the respondents, the reliance placed by the petitioner in the Prospectus of the year 2018 and the provisions of Act, 2008 cannot be sustained. 7. That apart, it is submitted that, as per the proviso to Regulation 9(4) of the Post Graduate Medical Education (Amendment) Regulations, 2018, it is for the State Government to notify the rural areas from time to time. In accordance with the amendment so made, Ext.P6 Government Order was issued, wherein, it is ordered that, all institutions outside the jurisdictional area of Municipalities and Corporations only will be included in the category of rural area. **W.P.(C) No.14371 of 2018** 5 As per Clause 7.1.3 of Ext.P5 Prospectus, “Casualty Service” was deemed to be Rural Service and any Doctor who has rendered “Casualty Service” was entitled for Health Service Quota in the matter of Medical PG Admissions. However, there is no Health Service Quota now for PG Medical Admissions, and consequently the provisions of Ext.P5 Prospectus has no force as of now. Ext.P6 is the Government Order which is prevalent now, and from the same, it is clear that, service in the institutions which are inside the area of Municipalities and Corporations will not be considered as rural areas. Petitioner was working admittedly from 11.12.2007 to 27.06.2015 in the Women and Children Hospital, Alappuzha within the limits of Alappuzha Municipality. As such, the claim of the petitioner is against the guidelines for Ext.P4 PG Service Quota Admissions, and therefore, petitioner is not entitled to get any reliefs. 8. Heard respective counsel across the Bar. The sole question to be considered is, whether the petitioner is entitled to get any relief as is sought for in the writ petition, in view of the notification issued for admission to the PG Courses for the academic year 2018-19. Petitioner is not having a case that petitioner has rendered the rural service in contemplation of ## **W.P.(C) No.14371 of 2018** 6 the Prospectus issued for admission to PG Medical Degree/Diploma courses, 2018-19. According to the petitioner, the casualty service rendered by the petitioner, as specified above, is liable to be counted for reckoning the total service put in by the petitioner. However, in order to make such a quantification, petitioner relies on Ext.P5 Prospectus for admission to PG Medical Degree/Diploma Courses, 2016. The said Prospectus is no more in force. Therefore, the petitioner is not entitled to get the benefit of Ext.P5 notification. There is no case for the petitioner that, petitioner has completed three years of service as per the Government Order dated 03.03.2018 in accordance with the requirement of law. 9. Learned Senior Government Pleader submitted that, in fact the three years service to qualify for the weightage marks is mandatory, however, the service rendered by the petitioner in the rural area was taken into account and the petitioner was provided with 10% weightage. But, petitioner is unable to secure a seat in view of the better meritorious candidates competing for the seats available. 10. Having evaluated the situation and reckoning the factual and legal circumstances, I am of the considered opinion 7 **W.P.(C) No.14371 of 2018** that, petitioner is not entitled to get any relief, exercising the powers conferred on this Court under the writ jurisdiction, since there is no illegality, arbitrariness or _malafides_ on the part of the respondents in providing weightage marks to the petitioner. Resultantly, writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/31.05.2018