Dr. Merin Jose v. State of Kerala & Ors.

W.P.(C) No. 3314/2023 : 1 : ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 ## WP(C) NO. 3314 OF 2023 ## PETITIONER/S: DR. MERIN JOSE AGED 42 YEARS D/O JOSE THOMAS, LECTURER, DEPARTMENT OF MEDICINE, GOVT. MEDICAL COLLEGE, ERNAKULAM-683 503. RESIDING AT KOILPARAMBIL HOUSE, BTSRRA-79, EDAPPALLY, ERNAKULAM, PIN – 682 024. BY ADVS. V.A.VINOD SHAKTHI PRAKASH HARIKRISHNAN M.S. ## RESPONDENT/S: - 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. - 2 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM, PIN – 695 011. - 3 THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM, PIN – 695 033. - 4 COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN – 695 001. - 5 POSTGRADUATE COURSE SELECTION COMMITTEE, REPRESENTED THROUGH ITS CHAIRMAN, SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. - 6 DIRECTOR GENERAL OF HEALTH SERVICES, MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA, NEW DELHI, PIN – 110 011. - 7 MEDICAL COUNSELLING COMMITTEE (MCC), MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA, NEW DELHI, PIN – 110 011. - 8 GOVERNMENT MEDICAL COLLEGE, THRISSUR, W.P.(C) No. 3314/2023 : 2 : REPRESENTED BY ITS PRINCIPAL. THRISSUR DISTRICT, PIN – 680 596. BY ADVS. ADVOCATE GENERAL OFFICE KERALA SRI. GIRISH KUMAR V, CGC SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 3314/2023 : 3 : ## **SHAJI P. CHALY, J.** --------------------------------------------------------W.P.(C). No. 3314 of 2023 --------------------------------------------------------Dated this the 27[th] day of February, 2023. ## **JUDGMENT** The petitioner, a Lecturer in the Department of Medicine in the Government Medical College, Ernakulam, has filed this writ petition alleging that the respondents are not taking steps to grant permission to her to join in the postgraduate course for MD Physiology on the basis of the allotment given to her. 2. Shorn of unnecessary details, facts required for the disposal of the writ petition are as follows: The petitioner appeared in the NEET-PG 2022 examination and qualified for admission to the postgraduate medical courses. The petitioner, being an in-service candidate, had applied for postgraduate programme in MD Medicine in service quota and was allotted a seat in TD Medical College, Alappuzha. The doctors of the Palakkad Medical College approached this Court challenging nongrant of service reservations to the doctors of the Palakkad Medical College. 3. A Division Bench of this Court allowed the writ petition and directed the respondent to publish the revised list, including the petitioners therein, consequent to which the allotment of the writ W.P.(C) No. 3314/2023 : 4 : petitioner was revoked when fresh allotments were made for inservice quota. After the allotments were over, the Medical Counselling Committee, Ministry of Health and Family Welfare, Government of India, New Delhi— respondent No.7, issued a notice calling upon to fill up the stray vacancies and accordingly, the petitioner applied for MD Physiology at Government Medical College, Thrissur. Even though the petitioner was allotted with a seat, she could not join the course in time as she was not aware of the allotment given to her. 4. However, when the petitioner approached the respondents to allow her to join the course, it is not being considered for the reason that the last date of admission is over on 13.01.2023. It is, thus, challenging the said inaction on the part of the respondents, the writ petition is filed. 5. The paramount contention advanced by the petitioner is that the seat of MD Physiology at Government Medical College, Thrissur is still lying vacant. It is further submitted that the petitioner could not join on time, since she was not aware of the allotment of the seat, since the allotment was never communicated to her. It is further submitted that even though the petitioner has submitted an email representation before the Commissioner of Entrance Examinations, Thiruvananthapuram, respondent No.4, the W.P.(C) No. 3314/2023 : 5 : same was not considered. 6. It is also submitted that if the petitioner is not permitted to join the course, the seat allotted to the petitioner will become a waste and thus, the opportunity of the Government to render service to the public through post graduate in-service doctors would be lost. 7. I have heard the learned counsel for the petitioner Sri. V.A. Vinod, the learned Government Pleader Sri. P.G. Pramod and the learned Central Government Counsel Sri. V. Girishkumar, and perused the pleadings and material on record. 8. A statement is filed for and on behalf of the Medical Counselling Committee, respondent No.7, refuting the claims and demands raised by the petitioner. 9. The paramount contention advanced is that the Hon’ble Supreme Court in I.A.No. 16 of 2012 in Civil Appeal No.1944 of 1993 in the matter of _**Anand S. Biji v. State of Kerala & Ors**_ ., the Director General of Health Services, Government of India, New Delhi has been entrusted with the responsibility to conduct online counselling for allotment of Postgraduate seats to the eligible and qualified candidates in the 50% All India Quota every year. 10. It is further submitted that the allotment of seat to the candidates is made based on the NEET/PG conducted by National W.P.(C) No. 3314/2023 : 6 : Board of Examinations, New Delhi. It is further submitted that as per MCI notification No. MCI-18(1)/2017-Med./128371 dated 31.07.2017, the Director of Health Services is entrusted with the responsibility to conduct medical counselling for PG courses. Therefore, it is submitted that the Medical Counselling Committee of DGHS is responsible for allotment of seats for 50% in All India Quota and 100% in Deemed Universities and Central Universities to the candidates as per their merit and choice. 11. It is also submitted that the role of the respondent No.7 is limited to the conduct of online counselling and allotment of seats of All India Quota. It is further submitted that the petitioner has not participated in All India Quota Counselling held by the 7[th] respondent. However, the PG counselling is completed on 14.01.2023 as per the counselling schedule, evident from Annexure R7(a) dated 02.02.2023. 12. The learned Government Pleader has also submitted that the list was published on 10.01.2023 and the admission closed on 14.01.2023 and therefore, as per the directions issued by the Apex Court in various judgments, the petitioner cannot be permitted to join the course after the closure of admission. 13. It is an admitted fact that the petitioner was allotted with a seat in the Government Medical College for MD Physiology as per W.P.(C) No. 3314/2023 ## : 7 : the list published on 10.01.2023. But, the petitioner did not join the course on or before 14.01.2023 i.e., the last date for joining the course. The sum and substance of the contention advanced by the respondents is that all the candidates who have secured seats are duty bound to join the course before the last date and after the closure of admission, and that no candidate can be permitted to join the course thereafter, whatever be the circumstances faced by the petitioner. 14. Even though it is contended that the petitioner has not been intimated with respect to the admission granted to her, it is an admitted fact that the list of candidates was published in public domain and therefore, the petitioner ought to have verified the same and joined the course in accordance with the stipulations contained thereunder. 15. On the other hand, the learned counsel appearing for the petitioner submitted that the seat allotted to the petitioner is still remaining vacant and therefore, no purpose would be served by not permitting the petitioner to join the course. 16. In fact, this question was considered by the Apex Court in _**Medical Council of India v. Madhu Singh**_ , (2002) 7 SCC 258], in which the Medical Council of India was directed to ensure that the examining bodies fix a time schedule specifying the duration of the W.P.(C) No. 3314/2023 : 8 : course, the date of commencement of the course and the last date for admission. ## 17. In **Mridul Dhar v. Union of India** , (2005) 2 SCC 65], it was held thus at paragraph 7: “ **7.** It is a matter of anguish that despite various decisions of this Court and laying down of a time schedule for completion of admission process, the time schedule has not been adhered to at various stages by various authorities resulting in otherwise avoidable discontentment and hardship to the candidates. The observance of the time schedule is paramount for effective utilisation to all-India quota of medical and dental seats. The denial of a seat in the college of choice on the basis of one's merit position leads to frustration and results in injustice to the young students. The admission to a professional course based on merit position is paramount for the career of a student. The omission and commission in respect of admissions this year, as is evident from the orders aforenoted, adversely affected the career of meritorious students in their not getting admission in the college of their choice. Any frustration and feeling of injustice at an impressionable age at which the students compete in allIndia competition is neither desirable from the point of view of either the young students nor for the country's future. We are concerned with the career of those bright candidates who compete in a tough all-India competition. In this background, it is necessary to examine the acts of omission and commission at various levels, the suggestions that have been made and submissions put forth, to consider the issuance of directions for streamlining admissions from the next academic year in MBBS/BDS courses.” W.P.(C) No. 3314/2023 : 9 : 18. It was also held therein that it shall be the responsibility of all concerned, including the Chief Secretaries of each State/Union Territory and/or Health Secretaries to ensure compliance with the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences. It was also directed that the time schedule for grant of admission to postgraduate courses shall also be adhered to. 19. In _**Priya Gupta v. State of Chhattisgarh**_ , (2012) 7 SCC 433], it is held that what is of greater significance is the consequences that should follow where the Central Government, or the State Government or the Medical Council of India or the college itself, with impunity, violate the time schedule, regulations and order of merit to give admission to students in an arbitrary and nepotistic manner. 20. It is further held therein that it is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, university or the selection bodies constituted at the college level for allotment of seats by way of counseling. It was also declared thereunder that none of those authorities are vested with the power W.P.(C) No. 3314/2023 ## : 10 : of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of the apex court Court and the Medical Council of India Regulations. The practice of extending the counseling and filling up of seats are also deprecated. ## 21. Recently, in _**Board of Governors in Supersession of**_ _**Medical Council of India v. Dr. Priyambada & Others**_ **, [** 2022 SCC Online 1442], it was held that even when the complaints are made to the court that large number of seats are lying vacant seeking extension of time to fill those unfilled undergraduate/postgraduate seats of medical courses, the court always declined such requests and directed that schedule must be strictly adhered to. ## 22. In _**Education Promotion Society for India and**_ _**another v. Union of India & others**_ [2019 (7) SCC 38], it is held that merely because the seats are lying vacant, it is not a ground to grant extension of time and grant further opportunity to fill up vacant seats, and that the schedule must be followed. It was also observed that if such a course of action is permitted, it would be opening a pandora's box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated. W.P.(C) No. 3314/2023 : 11 : 23. Therefore, taking into account the facts and the legal circumstances discussed above, it cannot be said that there is any illegality or arbitrariness on the part of the respondents in not extending the time of joining to the petitioner for the MD Course, justifying interference in a proceeding under article 226 of the Constitution of India. Writ petition fails and accordingly, it is dismissed. sd/- **SHAJI P. CHALY, JUDGE.** Rv W.P.(C) No. 3314/2023 : 12 : ## APPENDIX OF WP(C) 3314/2023 ## PETITIONER’S EXHIBITS: Exhibit1 TRUE COPY OF THE SCORECARD SHOWING THE NEET RANK OF THE PETITIONER DATED NIL. Exhibit-P2 TRUE COPY OF THE NOTICE ISSUED BY THE 7TH RESPONDENT DATED 03.01.2023. Exhibit-P3 TRUE COPY OF THE EMAIL COMMUNICATION DATED 08.01.2023 Exhibit-P4 TRUE COPY OF THE ALLOTMENT SLIP ISSUED BY THE 4TH RESPONDENT DATED 10.01.2023. Exhibit-P5 TRUE COPY OF THE EMAIL DATED 25.01.2023 SENT TO THE 4TH RESPONDENT. RESPONDENTS’ ANNEXURES: Annexure R7(a) TRUE COPY OF THE SCHEDULE OF ONLINE COUNSELING FOR SPECIAL STRAY VACANCY ROUND FOR PG SEATS - 2022 True Copy rv PS To Judge.