W.P.(C)Nos.35113 /2022 & others
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944**
## **WP(C) NO. 35113 OF 2022**
## **PETITIONER:**
DR.JOSE JOHN, AGED 29 YEARS S/O JOHN, PATHIKKATTIL HOUSE, CHEENIKADAVU ROAD, PULAPATTA P.O., PALAKKAD, KERALA -678 632. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH NIMESH THOMAS SHERIN EDISON
## **RESPONDENT/S:**
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. 2 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN - 695 011, KERALA. 3 POSTGRADUATE COURSE SELECTION COMMITTEE, REPRESENTED THROUGH ITS CHAIRMAN- SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. 4 SCHEDULED CASTES, SCHEDULED TRIBES, BACKWARD CLASSES WELFARE AND GA DEPARTMENT, REPRESENTED THROUGH ITS PRINCIPAL SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. 5 GOVERNMENT MEDICAL COLLEGE, PALAKKAD, (ALSO KNOWN AS INSTITUTE OF INTEGRATED MEDICAL SCIENCE, PALAKKADREPRESENTED THROUGH ITS DIRECTOR, GOVERNMENT MEDICAL COLLEGE, PALAKKAD, EAST YAKKARA, KUNNATHURMEDU P.O., PALAKKAD - 678 013. 6 COMMISSIONER OF ENTRANCE EXAMINATIONS,
W.P.(C)Nos.35113 /2022 & others
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HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM - 695 001. 7 DR. CIBY SAMJI, OLIVE, PALACE LANE, PAPPANAMCODE, THIRUVANANTHAPURAM695 018. PH:9446052299.
BY ADVS. ADVOCATE GENERAL OFFICE KERALA R.SANJITH SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) C.S.SINDHU KRISHNAH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH WP(C).35199/2022, 35205/2022, THE COURT ON 24/11/2022 DELIVERED THE FOLLOWING:
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944**
**WP(C) NO. 35199 OF 2022**
## **PETITIONER/S:**
DR.KIRAN KUMAR AGED 34 YEARS S/O KUMARAN.K, AISWARYA, CHERUTHARA, PUDHIYAKAM.P.O, PALAKKAD-678545. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH SHERIN EDISON NIMESH THOMAS
## **RESPONDENT/S:**
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001. 2 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM, PIN-695011, KERALA. 3 POSTGRADUATE COURSE SELECTION COMMITTEE, REPRESENTED THROUGH ITS CHAIRMAN-SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001. 4 SCHEDULED CASTES,SCHEDULED TRIBES, BACKWARD CLASSES WELFARE AND GA DEPARTMENT, REPRESENTED THROUGH ITS PRINCIPAL SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 5 GOVERNMENT MEDICAL COLLEGE, PALAKKAD (ALSO KNOWN AS INSTITUTE OF INTEGRATED MEDICAL SCIENCE, PALAKKAD), REPRESENTED THROUGH ITS DIRECTOR, GOVERNMENT MEDICAL COLLEGE, PALAKKAD, EAST YAKKARA, KUNNATHURMEDU.P.O, PALAKKAD-678013.
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6 COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM695001. 7 ADDL.R7.DR.FINCY K P (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), LECTURER, DEPARTMENT OF PAEDIATRICS, GOVERNMENT MEDICAL COLLEGE, HMT ROAD, N.KALAMASSERY, ERNAKULAM 683 503. [IS IMPLEADED AS PER ORDER DATED 15.11.2022 IN I.A.1/2022 IN WP(C)35199/2022.] BY ADVS. ADVOCATE GENERAL OFFICE KERALA V.MADHUSUDHANAN SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) M.SREEBHADRAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH WP(C).35113/2022 AND CONNECTED CASES, THE COURT ON 24/11/2022 THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos.35113 /2022 & others
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944**
## **WP(C) NO. 35205 OF 2022**
## **PETITIONER/S:**
DR.BAIJU KISHOR B.S AGED 31 YEARS S/O BALACHANDRAN K., HARISREE, PRRA-54, PUTHALAM TEMPLE ROAD, N.KALAMASSERY P.O., ERNAKULAM - 683 104. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH NIMESH THOMAS SHERIN EDISON
## **RESPONDENT/S:**
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. 2 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN 695 011, KERALA. 3 POSTGRADUATE COURSE SELECTION COMMITTEE, REPRESENTED THROUGH ITS CHAIRMAN- SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. 4 SCHEDULED CASTES, SCHEDULED TRIBES, BACKWARD CLASSES WELFARE AND GA DEPARTMENT, REPRESENTED THROUGH ITS PRINCIPAL SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. 5 GOVERNMENT MEDICAL COLLEGE, PALAKKAD (ALSO KNOWN AS INSTITUTE OF INTEGRATED MEDICAL SCIENCE, PALAKKAD), REPRESENTED THROUGH ITS DIRECTOR, GOVERNMENT MEDICAL COLLEGE, PALAKKAD, EAST YAKKARA, KUNNATHURMEDU P.O., PALAKKAD 678 013. 6 COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM - 695
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001. 7 ADDL. DR.MERIN JOSE (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER), LECTURER, DEPARTMENT OF MEDICINE, GOVERNMENT MEDICAL COLLEGE, HMT ROAD, N.KALAMASSERRY, ERNAKULAM-683 503. ADDL. R7 IS IMPLEADED AS PER ORDER DATED 15-11-2022 IN IA 1/2022 IN WP(C) 35205/2022. BY ADVS. ADVOCATE GENERAL OFFICE KERALA SHAKTHI PRAKASH SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50)
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH WP(C).35113/2022 AND CONNECTED CASES, THE COURT ON 24/11/2022 DELIVERED THE FOLLOWING:**
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**V.G.ARUN (J) ---------------------W.P.(C) Nos.35113 & 35199 & 35205 of 2022 --------------------------------Dated this the 24[th] day of November, 2022**
## **JUDGMENT**
The petitioners are lecturers in the Government Medical College, Palakkad. Being desirous of pursuing their higher studies, the petitioners appeared for the NEET PG examination conducted on 21/5/2022. All of them secured good scores in the examination. Thus, the petitioners became qualified to be considered for common counseling for NEET PG-2022 for State quota seats and in private medical colleges. As per Section 5 of the Kerala Medical Officers Admission to Post Graduate Courses under Service Quota Act, 2008 and the Rules there under, the Government has to provide reservation in State Quota seats for selection of Medical Officers under Service Quota, based on their service. In accordance with the provisions, the first
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respondent, vide order dated 30/10/2021, decided to earmark 10% PG seats in State quota for in-service candidates. The provision for reservation is included in the prospectus for Admission to Medical Post Graduate Degree Courses 20222023 issued on 29/7/2022.
2. The status of Lecturers in the Government Medical College, Palakkad was the subject matter of dispute in an earlier round of litigation. This was for the reason that the Director of Medical Education had taken the stand that the Medical Officers of GMC, Palakkd cannot be treated on par with Medical Officers in the Medical Education Service and cannot therefore be considered for admission in the Medical Education Service Quota('MESQ' for short). Certain lecturers of Palakkad Medical College approached this court, challenging the DME's stand as arbitrary and discriminatory. By the judgment in W.P(C)No.2480 of 2022 and connected cases, a learned Single Judge declined to interfere and held that the petitioners have no right to be considered for admission under MESQ. The judgment was challenged in W.A.No.802 of 2022 and
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W.P.(C)Nos.35113 /2022 & others
connected appeals. In Ext.P5 judgment, the Division Bench declared as under;
_"71.Above all, even though the learned Government Pleader submitted that providing admission to a class of doctors in the in-service quota is a policy decision, and therefore, no interference is possible, we are unable to agree with the said contention for the fundamental reason that, if the policy is tainted by arbitrariness and illegality, thus interfering with the fundamental rights of the citizens, it is well settled by a catena of decisions, that the Constitutional courts shall not hesitate to interfere._
_72. That apart, we are informed by the learned Government Pleader that for the ensuing year 20222023, the admission process is not yet started._
_73. In our considered opinion, the Lecturers of Palakkad Medical College for all practical purposes can only be treated as, under the direct control and administration of_
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_DME, Thiruvananthapuram, though constituted under the SC/ST department, and therefore, they are also entitled to be treated similar to the Lecturers in the other mentioned in the Prospectus, and entitled to secure for PG Medical Courses in the in-service quota for the ensuing years, if required by making suitable amendments to the Act, 2008 and Rules, 2009. 74. In that view of the matter, appellants are entitled to succeed in the writ appeals. Accordingly, there will be a to the respondents, i.e. the State Government, represented by Secretary to the Government, Department of Health and Family Welfare; Director of Medical Education; Director of Health Services; and Commissioner for Entrance Examinations, Thiruvananthapuram, to include the qualified Lecturers of Government Medical College, Palakkad, in the Prospectus for Admission to Medical Postgraduate Degree Courses, for the ensuing years, in the in-service quota earmarked for Medical Education Service, and process the_
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_applications, in accordance with law."_
3. The State challenged Ext. P5 judgment before the Supreme Court in Special Leave to Appeal (C) No. 20326 of 2022 and connected Leave Petitions. The Apex Court refused to entertain the SLPs, under Article 136 and dismissed the petitions on 21.11.2022. Thus, the declaration in Ext. P5 judgment that the Lecturers of Government Medical College, Palakkad are entitled to be considered for admission to Post Graduate Courses under the Medical Education Service Quota attained finality.
4. In the meanwhile, the sixth respondent issued notification with respect to PG admission 2022-2023. Later the Sixth respondent issued notification dated 10/10/2022, calling for fresh applications from service quota candidates. This was necessitated since the upper age limit prescribed in the prospectus for Medical Education Service Quota, Health Service Quota and Insurance Medical Service Quota was modified by the Government as per G.O.(Rt.)No.2403/2022/H
& FWD dated 1/10/2022. Even after issuance of the
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notification on 10/10/2022, the Lecturers of GMC, Palakkad were disabled from registering their option for admission through the official portal of the 6[th] respondent. As a result, the service quota rank list was published without including the petitioners. The provisional list of allotment was published on 29/10/2022 and final list on 31/10/2022. In the process, the seats for which the petitioners are entitled were allotted to lesser ranked candidates from other Government Medical Colleges. These candidates are impleaded as 7[th] respondents in the writ petitions.
5. Adv. Manu Srinath, learned Counsel for the petitioners, contended that in the face of the declaration in Ext.P5 judgment and the undisputed fact that petitioners are having higher ranks than the candidates allotted in their place, the process of allotment is liable to be interfered with and corrected.
6. Advs.R.Sanjith, N.Madhu and Shakthi Prakash, appearing for the party respondents, stoutly opposed the contention and submitted that their clients have already been
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admitted to the respective courses and any interference at this point of time will prejudice the party respondents. Such interference will also amount to changing the rules midway into the game. It is contended that in so far as the direction in Ext.P5 judgment is to include Lecturers of GMC, Palakkad in the ensuing years, the direction will have effect only from the year 2023-24. Even otherwise, the petitioners cannot seek a writ of mandamus based on the direction in that judgment, their remedy being to initiate contempt of court proceedings. Finally it is contended that, the petitioner having failed to assail the process of selection at any point of time or approach the State or the Commissioner for Entrance Examinations with a request to include their names, no writ of mandamus can be issued at the instance of the petitioners. In support of this contention, learned counsel placed reliance on the decision of the Apex Court in **Saraswati Industrial Syndicate Ltd. And Others v. Union of India (1974 2 SCC 630) and Rajasthan State Industrial Development And Investment Corporation v. Subhash Sindhi Cooperative Housing**
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## **Society Jaipur and Others [(2013) 5 SCC 427].**
7. Replying to the contentions, Counsel for the petitioners submitted that, failure of the sixth respondent to make provision for the Lecturers of GMC, Palakkad to exercise their option for allotment even in the notification dated 10/10/2022 issued after Ext.P5 judgment, gave rise to a fresh cause of action. As regards the contention that the declaration in Ext.P5 will be applicable only for admissions from 2023-24 onwards, it is submitted that in Ext.P5 judgment, it is clearly stated that the ensuing year is 2022 - 23. On the contention regarding failure to assail the process of selection and to raise objection, it is contended that the with pace at which the allotment process was proceeding after Ext.P6 notification, there was no sufficient time to raise the objections. Moreover, in view of the categoric declaration in Ext.P5 judgment the petitioners have every right to seek a writ of mandamus, their right having been curtailed, in spite of the declaration. Responding to the
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contention that interference at this stage will amount to changing the rules of the game, it is submitted that no change is sought to the Rules, since the prayer is grant allotment and admission based on merit.
8. I find substantial merit in the contention urged by the learned counsel for the petitioners. Indisputably, the petitioners have higher marks and superior ranks than the persons allotted and granted admission in their place. The right of the petitioners to be considered for allotment under MESQ is covered by the declaration in Ext.P5 judgment. The contention that no writ of mandamus will lie can only be rejected in the light of the said declaration. The contention that the remedy of the petitioners is to initiate contempt of court proceedings is also liable to be rejected since no provision for exercising option was made available to the lecturers of GMC, Palakkad even after issuance of Ext.P6 notification. This definitely gave rise to a fresh cause of action for the petitioners. The contention that the declaration in Ext.P5 is applicable only from 2023-24 onwards, cannot be
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countenanced, since the writ petitions that had culminated in Ext.P5 judgment were filed challenging the prospectus of 2021-2022. As rightly contended by the learned counsel for the petitioners, the Division Bench itself has clarified that the ensuing year is 2022-2023. The objection that interference by this court will amount to changing the rules of the game has no basis since this court is only ensuring that the more meritorious candidates are admitted. The explanation offered by the petitioners for approaching this court, without first submitting an objection or requesting for consideration of their claim being well founded, the contention regarding maintainability of the prayer for issuance of a writ of mandamus is also liable to be rejected. Such objections cannot deter this court from exercising its extraordinary jurisdiction when patent illegalities are brought to its notice.
9. In the result, the writ petitions are disposed of directing respondents 1 and 2 to rework the allotment and admission for M.D.Anaesthesia, M.D.Paediatrics and M. D.General Medicine courses for 2022 – 2023 under MESQ and
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to forthwith admit the petitioners based on their rank. The Supreme Court having dismissed the Leave Petitions filed against Ext.P5 judgment on 21.11.2022, the allotment and admission to M.D.Anaesthesia, M.D.Paediatrics and M. D. General Medicine under MESQ shall be reworked before 2/12/2022 by including the petitioners' names in the final list of MESQ candidates.
Sd/-
## **V.G.ARUN, Judge**
dpk
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## **APPENDIX OF WP(C) 35199/2022**
PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE NEET-PG 2022 SCORECARD OF THE PETITIONER Exhibit P2 A TRUE COPY OF THE RELEVANT PAGES OF PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE COURSES, 2022-2023 ISSUED BY THE 2ND RESPONDENT-DME Exhibit P3 A TRUE COPY OF THE NOTIFICATION DATED 09.08.2022 ISSUED BY THE 6TH RESPONDENT-CEE Exhibit P4 A TRUE COPY OF THE ACKNOWLEDGMENT DATED 14.08.2022 OF THE APPLICATION SUBMITTED BY THE PETITIONER Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED 25.08.2022 IN WA 764/2022 AND CONNECTED CASES [NEUTRAL CITATION NUMBER: 2022/KER/46990] PASSED BY THE DIVISION BENCH OF THE HON'BLE HIGH COURT Exhibit P6 A TRUE COPY OF THE NOTIFICATION DATED 10.10.2022 ISSUED BY THE 6TH RESPONDENT- CEE Exhibit P7 A TRUE COPY OF THE SERVICE QUOTA LIST PUBLISHED BY THE 6TH RESPONDENT- CEE ON 22.10.2022. Exhibit P8 A TRUE COPY OF THE REVISED RANKED LIST DATED 9/11/2022 FOR THE SERVICE QUOTA PUBLISHED BY THE 6TH RESPONDENT - CEE
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## **APPENDIX OF WP(C) 35205/2022**
|PETITIONER EXHIBITS||
|---|---|
|Exhibit P1|A TRUE COPY OF THE NEET-PG 2022 SCORECARD OF|
||THE PETITIONER|
|Exhibit P2|A TRUE COPY OF THE RELEVANT PAGES OF|
||PROSPECTUS FOR ADMISSION TO MEDICAL POST|
||GRADUATE DEGREE COURSES, 2022-2023 ISSUED BY|
||THE 2ND RESPONDENT-DME.|
|Exhibit P3|A TRUE COPY OF THE NOTIFICATION DATED|
||09.08.2022 ISSUED BY THE 6TH RESPONDENT-CEE.|
|Exhibit P4|A TRUE COPY OF THE ACKNOWLEDGMENT DATED|
||16.08.2022 OF THE APPLICATION SUBMITTED BY|
||THE PETITIONER.|
|Exhibit P5|A TRUE COPY OF THE JUDGMENT DATED 25.08.2022|
||IN WA 764/2022 AND CONNECTED CASES [NEUTRAL|
||CITATION NUMBER: 2022/KER/46990] PASSED BY|
||THE DIVISION BENCH OF THE HON'BLE HIGH COURT.|
|Exhibit P6|: A TRUE COPY OF THE NOTIFICATION DATED|
||10.10.2022 ISSUED BY THE 6TH RESPONDENT- CEE.|
|Exhibit P7|A TRUE COPY OF THE SERVICE QUOTA LIST|
||PUBLISHED BY THE 6TH RESPONDENT- CEE ON|
||22.10.2022.|
|Exhibit P8|A TRUE COPY OF THE REVISED RANKED LIST DATED|
||9.11.2022 FOR THE SERVICE QUOTA PUBLISHED BY|
||THE 6TH RESPONDENT - CEE|
|RESPONDENT EXHIBITS||
|Exhibit R7 A|TRUE COPY OF THE RANK LIST FOR THE SERVICE|
||QUOTA DATED 9.11.2022 INCLUDING THE|
||RESPONDENT. PROOF OF PAYMENT OF FEES OF THE|
||RESPONDENT IS PRODUCED HERE WITH AND MARKED|
||AS EXHIBIT R7 (B).|
|Exhibit R7 B|TRUE COPY OF PROOF OF PAYMENT OF FEES OF THE|
||RESPONDENT IS PRODUCED HEREWITH AND MARKED AS|
||EXHIBIT R7 (B).|
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## **APPENDIX OF WP(C) 35113/2022**
|PETITIONER EXHIBITS||
|---|---|
|Exhibit P1|A TRUE COPY OF THE NEET-PG 2022 SCORECARD OF|
||THE PETITIONER.|
|Exhibit P2|A TRUE COPY OF THE RELEVANT PAGES OF|
||PROSPECTUS FOR ADMISSION TO MEDICAL POST|
||GRADUATE DEGREE COURSES, 2022-2023 ISSUED BY|
||THE 2ND RESPONDENT-DME.|
|Exhibit P3|A TRUE COPY OF THE NOTIFICATION DATED|
||09.08.2022 ISSUED BY THE 6TH RESPONDENT-CEE.|
|Exhibit P4|A TRUE COPY OF THE ACKNOWLEDGMENT DATED|
||16.08.2022 OF THE APPLICATION SUBMITTED BY|
||THE PETITIONER.|
|Exhibit P5|A TRUE COPY OF THE JUDGMENT DATED 25.08.2022|
||IN WA 764/2022 AND CONNECTED CASES [NEUTRAL|
||CITATION NUMBER: 2022/KER/46990] PASSED BY|
||THE DIVISION BENCH OF THE HON'BLE HIGH COURT.|
|Exhibit P6|A TRUE COPY OF THE NOTIFICATION DATED|
||10.10.2022 ISSUED BY THE 6TH RESPONDENT- CEE.|
|Exhibit P7|A TRUE COPY OF THE SERVICE QUOTA LIST|
||PUBLISHED BY THE 6TH RESPONDENT- CEE ON|
||22.10.2022.|
|Exhibit P8|A TRUE COPY OF THE RELEVANT PAGE OF THE|
||PROVISIONAL ALLOTMENT LIST PUBLISHED BY THE|
||6TH RESPONDENT ON 29.10.2022.|
|Exhibit P9|A TRUE COPY OF THE RELEVANT PAGE OF THE FINAL|
||ALLOTMENT LIST PUBLISHED BY THE 6TH|
||RESPONDENT ON 31.10.2022.|