Dr. Murali Koppen… v State of Kerala and Others

W.P.(C)No.34091/2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 WP(C) NO. 34091 OF 2022** ## **PETITIONER/S:** DR.MURALI KOPPENTAVIDA AGED 48 YEARS S/O LATE T N NARAYANAN, ASSISTANT SURGEON, COMMUNITY HEALTH CENTRE, VALAYAM, KOZHIKODE673517 , RESIDING AT ANCHANTAVIDA HOUSE, PERODE P.O., KOZHIKODE- 673504. BY ADVS. THOMAS ABRAHAM MERCIAMMA MATHEW ASWIN.P.JOHN R.ANANTHAPADMANABAN PAUL BABY ## **RESPONDENT/S:** 1 THE STATE OF KERALA REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM- 695001. 2 DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM- 695035. 3 COMMISSIONER OF ENTRANCE EXAMINATION, GOVERNMENT OF KERALA, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM -695001. 4 DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM- 695001. BY ADVS. ADVOCATE GENERAL OFFICE KERALA SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) W.P.(C)No.34091/2022 2 **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON 2/11/2022 DELIVERED THE FOLLOWING:** W.P.(C)No.34091/2022 3 ## **V.G.ARUN (J)** **---------------------W.P.(C) No. 34091 of 2022** **--------------------------------------Dated this the 2[nd] day of November, 2022** ## **JUDGMENT** The petitioner is working as Assistant Surgeon at the Community Health Centre at Valayam in Kozhikode District. The petitioner is desirous of securing admission for PG course(MD in General Medicine). For this purpose the petitioner appeared for the National Eligibility cum Entrance Test, but missed his chance of admission under service quota by a narrow margin. Undaunted, the petitioner participated in NEET-PG 2020 – 2021 and qualified for being considered for common counselling for admission to State quota PG seats in private medical institutions. The petitioner's chance for admission under the service quota was lost by reason of the upper age limit for Health Service Quota candidates being fixed as 45 years by virtue Clause 4.3.3.of the Prospectus for Admission to Medical Post Graduate Degree Courses 2021 – 2022 . Therefore the petitioner challenged Clause 4.3.3 in W.P.(C) No.2554 of 2022. It was contended that the clause was illegal to the extent W.P.(C)No.34091/2022 4 it fixed the upper age limit as 45 years for candidates under the Health Service Quota. That writ petition was dismissed accepting the Government’s explanation that the upper age limit was fixed to ensure that, after completion of the PG Course, qualified Doctors will render at least ten years service before retirement. 2. The petitioner appeared for NEET PG Examination 2022 – 23 thereafter and secured 479 marks out of 800 and is placed at 15901 in the All India Rank List. In the rank list prepared by the Commissioner for Entrance Examination, based on the marks in the NEET Examination, the petitioner is Rank No. 1779. The petitioner is confident of securing admission for MD General Medicine, if he is considered as a Service Quota candidate. In the Prospectus for Admission to Medical Post Graduate Courses 2022-2023 also the upper age limit for Health Service Quota candidates is fixed as 45 years as per Clause 4.3.3. 3. As the upper age limit of 45 years was causing substantial prejudice to service quota aspirants like the petitioner, the Kerala Government Medical Officers Association (KGMOA), submitted representations before the Government. This resulted in the issuance of Ext.P4 Government Order dated 1/10/2022, enhancing the upper age limit of Health Service Quota candidates to 46 years W.P.(C)No.34091/2022 5 as on the date of notification. Consequently, the Commissioner for Entrance Examination issued Ext.P3 notification, inviting fresh applications from in-service candidates falling within the enhanced upper age limit. The enhancement of age to 46 years is of no benefit to the petitioner as he is aged 48 years. Hence this writ petition, challenging Ext. P4 to the extent it limits the enhancement of the upper age for admission to Medical Post Graduate Degree Courses 2020 – 23 under service quota to 46 years instead of 50 years. 4. Adv.Thomas Abraham, learned Counsel appearing for the petitioner, submitted that in the admissions conducted earlier, the upper age limit for service quota candidates was 50 years. The age limit was reduced to 45 years in the 2021-2022 admissions. The reason offered by the Government is that the public should get at least ten years service from the Medical Officers after they acquire Post Graduate Degree. Even though the challenge against the fixing of upper age limit as 45 years was repelled, that judgment is not binding since the Government enhanced the upper age limit to 46 years after publication of the 2022-2023 Prospectus. It is contended that, since the basis for enhancement is the representation filed by the KGMOA, the age should have been enhanced to 50 years as sought in the representation, instead of W.P.(C)No.34091/2022 6 arbitrarily fixing the age limit as 46 years. No justifiable or acceptable reason is stated in Ext.P4 for enhancing the upper age limit to 46 years. The enhancement from 45 to 46 years does not make any sense, since the age of Doctors like the petitioner, having better experience, would be more than 46 years. It is submitted that the petitioner has experience of more than 12 years, of which 12 years is rural service. As per Clause 6-6.12.c. of Ext.P1 prospectus service weightage and weightage for rural service is to be given due preference while awarding marks for preparing the list of eligible candidates. As such, fixing of 46 years as the upper age limit is irrational. The Government's reasoning that if the age limit is further enhanced, service of Post Graduate Doctors will not be available for ten years, no longer holds good in view of the enhancement from 45 to 46 years. Even if the decision to fix the upper age limit for service quota candidates is taken to be the Government’s policy this court can interfere and correct the decision, the same being irrational and arbitrary. In support of this contention, reliance is placed on the decisions in C _handran v. Union of India_ (I _LR 2003 (3) Ker..354), State of Kerala v. Manager, Nirmala Public School and Another (ILR 2008 (2) Ker. 788)_ and _Balagopalan G.v. State of Kerala and Others (ILR 2021 (1) Ker. 673)._ W.P.(C)No.34091/2022 7 4. Adv.P.G.Pramod, learned Government Pleader appearing for the respondents, submitted that having challenged the enhancement of upper age limit of 45 years fixed in the Prospectus of 2021 – 2022 without success, the petitioner cannot seek to challenge the enhancement of the upper age to 46 years. In the judgment dismissing the petitioner’s earlier challenge this court, after taking into account the purpose behind fixing the upper age limit, had categorically held that there is no arbitrariness involved in the matter and there is no discrimination offending Article 14. The upper age limit was enhanced from 45 to 46 years considering that PG Courses are of three year duration and a Medical Officer admitted to PG Course at the age of 46 years will be able to complete the course at the age of 49 and even keeping a buffer of one year, the Officer will be able to render ten years service after Post Graduation. The petitioner is aged 48 years and therefore will not be able to render ten years of service after Post Graduation. The purpose behind providing reservation to service candidates is to provide quality medical service to the public. The decision to enhance the upper age limit of 46 years being a policy decision taken by the Government, does not warrant interference in exercise of the power of judicial review, particularly in the absence of discrimination or arbitrariness. W.P.(C)No.34091/2022 8 5. Indisputably, the petitioner had challenged Clause 4.3.3. In the Prospectus of 2021 -2022, fixing the upper age limit for Health Service Quota candidates as 45 years. After elaborate consideration, this court dismissed the writ petition accepting the Government's contention that the upper age limit was fixed to ensure that, after completion of PG Course, the qualified doctor is able to render at least ten years service to the public before retirement. I am also in agreement with the finding that, since the period of study of the service quota candidates is treated as service and they are bound to reciprocate for the benefits they receive by rendering a minimum period service to the public. 6. The other ground of challenge is that, having enhanced the minimum age to 46 years the Government could have enhanced it to 50 years, as requested by the KGMOA. Whatever be the request made by a service organisation, the Government is empowered to take its own decision after considering the relevant aspects. As discussed earlier, the decision to fix the upper age as 45 years itself having been upheld, the challenge against enhancement of the age by one year, which according to me is a well reasoned decision, cannot be challenged as irrational or arbitrary. Even going by the precedents cited by the Counsel for the petitioner, the constitutional courts will be justified in interfering with policy matters only if such W.P.(C)No.34091/2022 9 policy fails on being tested on the touchstone Constitutionality. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN, JUDGE** dpk W.P.(C)No.34091/2022 10 ## **APPENDIX OF WP(C) 34091/2022** PETITIONER EXHIBITS Exhibit P1 THE RELEVANT PAGES OF THE PG ADMISSION PROSPECTUS, 2022-2023 . Exhibit P2 THE TRUE COPY OF THE DOCUMENT EVIDENCING THE RANK SECURED BY THE PETITIONER OBTAINED FROM THE WEBSITE OF THE NATIONAL BOARD OF EXAMINATION IN MEDICAL SCIENCES, NEW DELHI Exhibit P3 THE TRUE COPY OF THE NOTIFICATION DATED 10/10/2022 ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATIONS Exhibit P4 THE TRUE COPY OF THE G.O. (RT) NO.2403/2022/H&FWD DATED 1/10/2022. Exhibit P5 THE TRUE COPY OF THE REPRESENTATION DATED 22.10.2022 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT AUTHORITIES. Exhibit P6 THE TRUE COPY OF THE NOTIFICATION NUMBERED AS CEE/545/2022 TAI DATED 22/10/2022 ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATIONS. Exhibit P7 THE TRUE COPY OF THE CIRCULAR NO.E.B651644/2022/D.H.S DATED 25.10.2022 ISSUED BY THE DIRECTOR OF HEALTH SERVICES. Exhibit P8 THE RELEVANT PAGES OF PG ADMISSION PROSPECTUS, 2022-2023 CONTAINING CLAUSE 12.