Dr. Noodiya Abdu.V.T. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 26[TH] DAY OF SEPTEMBER 2023 / 4TH ASWINA, 1945** **WP(C) NO. 27939 OF 2023** ## **PETITIONER:** **DR. NOODIYA ABDU.V.T. AGED 30 YEARS W/O. JUNAID.T.K., RESIDING AT 'BAITHUL SAFA', VAZHAKKULANGARA, PUTHUR.P.O., OMASSERY (VIA), AMBALAKANDI, KOZHIKODE- 673582, Ph:8086268781** **BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** - **2 THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, VANCHIYOOR. P.O., THIRUVANANTHAPURAM - 695001** - **3 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM - 695001** - **4 THE COMMISSIONER OF ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM - 695001** - **5 THE NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES, REPRESENTED BY ITS EXECUTIVE DIRECTOR, MAHATMA GANDHI MARG (RING ROAD), ANSARI NAGAR, NEW DELHI – 110029** **WP(C) NO. 27939 OF 2023** **2** - **6 THE EXECUTIVE DIRECTOR, THE NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES, MAHATMA GANDHI MARG (RING ROAD), ANSARI NAGAR, NEW DELHI - 110029** - **ADDL.R7 DR.ARATI SUSEELAN AGED 36 YEARS, W/O AKHIL SIDHARTH, RESIDING AT THEKKEMADATHIL, PAYIKUZHY, OACHIRA P.0., KOLLAM690526** ***IS IMPLEADED AS ADDITIONAL 7TH RESPONDENT AS PER ORDER IN I.A.No.2 OF 2023 DATED 26.09.2023 IN W.P(C).No.27939/2023** **BY ADVS. P.C SASIDHARAN, SC SRI.P.G.PRAMOD, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 27939 OF 2023** **3** **T.R. RAVI, J. --------------------------------------------** W.P.(C)No.27939 of 2023 -------------------------------------------Dated this the 26[th] day of September, 2023 ## **JUDGMENT** The prayer in the writ petition is for quashing paragraph 2(E) and paragraph 6 of Ext.P2 to the extent it lays down that all four seats available for DNB (Post Diploma) Courses in Psychiatry in the State of Kerala will be reserved for inservice quota candidates. The petitioner is placed record in the rank list prepared after the entrance examination conducted by the National Board of Examination in Medical Sciences. She claims that she is entitled to be admitted to some of the seats available in the Government Health Centre, Kuthiravattom, Kozhikode. The petitioner submits that she had delivered twin babies who have completed just ten months and it will not be possible for her to pursue her studies in New Delhi or other State away from her family and hence seeks admission for the course in Kerala. Out of ten **WP(C) NO. 27939 OF 2023** **4** seats which are available in the State, five seats are reserved for in-service candidates and five seats are available for Centralized allotment by the 5th respondent. In the counter affidavit filed by the 2nd respondent, the details of the ten seats in various disciplines have been stated. Out of the ten seats two seats in Anaesthesiology, two seats in Orthopaedies and one seat in Obstertrics and Gynaecology were made available for Centralized allotment and rest of the seats were decided to be filled up from in-service quota on the basis of necessity which is felt by the State **.** The said five seats include two seats for Psychiatry in the Government Mental Health Centre, Kuthiravattom and two seats in Psychiatry in Mental Health Centre in Peroorkada. The grievance of the petitioner is that by retaining all the four seats available in the subject Psychiatry for being filled up by in-service personnel, persons like petitioners will not stand a chance to get to study the said course in Kerala. A statement has been filed on behalf of the 5th respondent wherein it is stated that the 5th respondent does not own or control any of the **WP(C) NO. 27939 OF 2023** accredited hospitals where the courses were conducted and as far as State quota seats are concerned, the counselling is conducted by the concerned State Medical Directorate. It is also stated that the 5th respondent does not have any role in earmarking a particular seat as reserved or non-reserved, which is stated to be in the domain of the State Government. The counsel for the petitioner relied on the judgment of a learned Single Judge of this Court in **Praveen S.Lal vs. State of Kerala** [2006 (4) KLT 712]. The said decision was rendered in a situation where there was a prescription of institutional preference and weightage of marks for such preference. This Court held that such institutional preference cannot stand the test of constitutionality. The court found that by preferring students from a particular college, students who studied elsewhere are completely kept out from the reckoning. The court directed to recast the rank list, excluding the weightage of marks and institutional preference given to students of Medical Colleges and Universities in Kerala. The dictum laid down in the said **WP(C) NO. 27939 OF 2023 6** decision will not apply to the present case. This is not a case of institutional preference. As far as the seats that are reserved for the State are concerned, there is no complaint that there is any preference as between candidates on any basis. So also with regard to the seats which are allotted for Centralized allotment, there is no complaint that the said allotment is based on any such preference. The issue is with regard to the manner in which the five seats were chosen by the State to be filled up from in-service candidates. A Division Bench of this Court in W.A.No.219 of 2022 held that reservations for admission to the in-service candidates for P.G.Medical course are at the liberty of the State Government and it is upto the Government to regulate and meet up with the requirements in the respective departments so as to cater the needs of the public at large. The Government felt that there is requirement for more qualified persons in the service in the field of Psychiatry. It is not for this Court to interfere with such decisions by exercising its discretionary power under Article 226 of the Constitution of India. The writ **WP(C) NO. 27939 OF 2023** **7** petition fails and is dismissed. It is made clear that this Court is not expressing any opinion regarding the claim of the petitioner as regards the seats which have been set apart for Centralized allocation. **Sd/T.R.RAVI JUDGE** LEK **WP(C) NO. 27939 OF 2023** **8** ## **APPENDIX OF WP(C) 27939/2023** ## **PETITIONER EXHIBITS** ## **EXHIBIT P1** **TRUE COPY OF THE RELEVANT EXTRACT OF THE HANDBOOK FOR ADMISSION TO DNB (POST DIPLOMA) COURSES FOR THE YEAR 2023 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P2** **EXT.P2: TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS) NO. 193/2023/H&FWD DATED 07.08.2023 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3** - **TRUE COPY OF THE SCORE CARD OF DNB-PDCET 2023 ADMISSION SESSION OF THE PETITIONER DOWNLOADED FROM THE WEBSITE OF THE NBEMS.** - **EXHIBIT P4 TRUE COPY OF THE MERIT POSITION OF THE APPLICANTS WHO APPEARED FOR THE ENTRANCE EXAMINATION CONDUCTED BY THE NBEMS FOR ADMISSION TO DNB (POST DIPLOMA) COURSES IN PSYCHIATRY DOWNLOADED FROM THE WEBSITE OF THE NBEMS.** - **EXHIBIT P5** - **TRUE COPY OF THE SCORE CARD OF THE PETITIONER PUBLISHED BY THE NBEMS FOR MAKING ADMISSION TO DNB (POST DIPLOMA) COURSES IN PSYCHIATRY FOR THE YEAR 2022.** **RESPONDENT EXHIBITS** - **EXHIBIT R2(a)** **TRUE COPY OF THE COMMUNICATION REF.NO. NBEMS/EDO/2023/3656 DATED 01.06.2023. ISSUED BY NBEMS**