Dr. Praveen N. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 16TH DAY OF FEBRUARY 2018 / 27TH MAGHA, 1939 O.P(KAT)No.66 of 2018 --------------------- AGAINST THE ORDER IN OA(EKM)NO.160/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 30-08-2017 PETITIONER/APPLICANT IN THE O.A. -------------------------------- DR.PRAVEEN.N., S/O. DAMODARAN, 40 YEARS, ASSISTANT PROFESSOR PLASTIC SURGERY, GOVT. MEDICAL COLLEGE, KOZHIKODE, PH.NO.9447216457, RESIDING AT: KAYYADATH, KUDILTHODU ROAD, THONDAYAD, CHEVARAMBALAM (P.O.), KOZHIKODE-673017, PH.NO.9447216457. BY ADVS.K.MOHANAKANNAN A.R.PRAVITHA H.PRAVEEN (KOTTARAKARA) T.S.NEJIMUDDIN RESPONDENTS/RESPONDENTS IN THE O.A.: ------------------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM-695001. 2. DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695001. 3. THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, KOZHIKODE-673008. 4. THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, CONVENER, DEPARTMENTAL PR0MOTION COMMITTEE (H), HEALTH & FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM-695001. -2- O.P(KAT)No.66 of 2018 --------------------- 5. THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, POCKET-14, SECTION-8, DWARAKA, PHASE 14, NEW DELHI-110001. 6. DR. SHEEJA RAJAN T. M., ASSISTANT PROFESSOR, PLASTIC SURGERY, GOVT. MEDICAL COLLEGE, KOZHIKODE-673008. BY ADV.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA BY SENIOR GOVERNMENT PLEADER : SRI.P.N.SANTHOSH THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 16-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 66 of 2018 (Z) APPENDIX ## PETITIONER'S EXHIBITS --------------------- EXHIBIT P1 TRUE COPY OF THE O.A.(EKM) 160/2016 ON THE FILE OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM. EXHIBIT P2 A TRUE COPY OF THE REPLY FILED BY THE 6TH RESPONDENT IN THE OA WITH ANNEXURES (R6(A) TO R6(D)). EXHIBIT P3 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN THE OA WITH ANNEXURES (A13 TO A16) EXHIBIT P4 TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR ACCEPTING ADDITIONAL DOCUMENTS WITH ANNEXURES (A17 TO A18). EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN OA (ERNAKULAM) 161/2016 DATED 30.8.2017. ## RESPONDENTS' EXHIBITS : NIL --------------------- //TRUE COPY// P.A. TO JUDGE bpr ## **P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, J.J. ---------------------------------------------------------------------O.P.(KAT) No.66 of 2018 ----------------------------------------------Dated this the 16[th] day of February, 2018** ## **JUDGMENT** ## **P.R. RAMACHANDRA MENON, J.** Interference declined by the Tribunal with regard to the challenge raised by the petitioner in respect of the possession of M.Ch (Plastic Surgery) issued by the Directorate of Medical Education, Thiruvananthapuram to the 6[th] respondent and in not considering the claimant to be promoted to the post of Associate Professor in respect of the vacancy which occurred on 30.07.2015 is subjected to challenge by the applicant in O.A.(EKM) No.160 of 2016. 2. Heard Sri.K. Mohanakannan, the learned counsel appearing for the petitioner at length. 3. The sequence of events reveals that the petitioner herein joined service as a Lecturer in the Government Medical College, Kozhikode on 30.11.2006. The next post in the hierarchy is of 'Associate Professor' and there O.P.(KAT) No.66 of 2018 -:2:- occurred a vacancy on 30.07.2015 as mentioned above. The case of the petitioner is that, instead of considering the merits and credentials of the petitioner, the 6[th] respondent has been given a placement over and above the petitioner, also by giving higher position in the seniority list, which was the subject matter of dispute before the Tribunal in O.A.(EKM) No.160 of 2016. Pursuant to the directions given by the Tribunal as per Ext.P5, the seniority to the post of Lecturer (subsequently renamed as 'Assistant Professor'), was rectified and the petitioner was given placement over and above the 6[th] respondent. This position should have been continued forever, but the same has been given 'go-bye' in the further course of events, as submitted by the learned counsel. 4. In the course of further proceedings, the Departmental Promotion Committee (DPC) considered the credentials of the parties and the selection list was published as per Annexure A8, wherein the 6[th] respondent was given placement showing him as the person to be O.P.(KAT) No.66 of 2018 -:3:- promoted as Associate Professor. This was to the chagrin of the petitioner, who sought to challenge the same by filing the O.A. before the Tribunal seeking the following reliefs: - a) To call for the records leading to Annexure A8 and A12 and to quash the same in so far as it promotes the 6[th] respondent as Associate Professor; - b) To issue an appropriate order or direction directing the respondents to promote the Applicant as Associate Professor (Plastic Surgery) in the place of the 6[th] respondent within a time frame as fixed by this Hon'ble Tribunal; - c) To declare that the promotion given to the 6[th] respondent vide Annexure A8 and A12 is totally illegal and the Applicant is entitled to get promotion Associate Professor (Plastic Surgery); - d) To issue such other directions or orders as this Hon'ble Tribunal deems fit and proper in the interest of justice and circumstances of the case. 5. The contention of the petitioner was that the 6[th] respondent, though possessed the degree of M.Ch issued by the Directorate of Medical Education, O.P.(KAT) No.66 of 2018 -:4:- Thiruvananthapuram in the year 2003 and was appointed in the year 2010 to the post of Assistant Professor, such degree ought not to have been recognised under any circumstance, for the obvious reason that the very admission given to the 6[th] respondent to the said course by the University was wrong and illegal. The reason stated by the petitioner is that, to get an entry to the M.Ch course, as per the regulations issued by the Medical Council of India, a person should have possessed MS (General Surgery). This qualification was not possessed by the 6[th] respondent, whereas the only person who was having such basic qualification of M.Ch (Plastic Surgery), based on MS (General Surgery), was none other than the petitioner. This being the position, the petitioner ought not to have been ousted, in any manner, to give placement to the 6[th] respondent by the authorities and hence the challenge. 6. The 6[th] respondent specifically rebutted the contentions also pointing out that she was qualified in all aspects, including the admission to the M.Ch course in the O.P.(KAT) No.66 of 2018 -:5:- year 2003. Reliance was placed on Annexure R6(a) prospectus issued by the State Government, where the eligibility to get admission to the M.Ch course included MS (ENT) as well, along with MS (General Surgery). The 6[th] respondent was having MS (ENT) and it was on the basis of the said qualification, that she got admission to M.Ch and hence the degree of M.Ch awarded to the 6[th] respondent was not assailable under any circumstance. It was after hearing both the sides, that the Tribunal arrived at a finding as per Ext.P5, repelling the contention raised by the petitioner/applicant and accepting the version of the 6[th] respondent based on the materials brought on record, in turn, declining interference and dismissing the O.A., which is under challenge in the present Original Petition. 7. The learned counsel for the petitioner points out that the regulation issued by the Medical Council of India is the magna carta to be acted upon anybody and it is not for the State Government to tinker with the same, in view of the law declared by the Supreme Court in **Preethi** O.P.(KAT) No.66 of 2018 -:6:- **Srivastava v. State of Madhya Pradesh** [AIR 1999 SC 2894] and **Medical Council of India v. State of Karnataka** [AIR 1998 SC 2423]. The learned counsel also placed reliance on Annexure A1 regulation issued by the MCI and also as per Annexure A5 guidelines, which stipulate MS (General Surgery) as the sole basic qualification for getting entry to admission in M.Ch. But, on going through the said documents, it is quite evident that Annexure A1 has been issued, as amended in the year 2013. Annexure A5 was issued in the year 2009. The 6[th] respondent cleared MS (ENT) in the year 2010 and she had got admission for M.Ch based on the qualification notified in Annexure R6(a) prospectus in the year 2003, who completed the course and obtained the degree issued by the Directorate of Medical Education. 8. The learned Standing Counsel appearing for the Medical Council of India submits that the basic qualification for getting entry to pursue the course in M.Ch was MS (General Surgery) even as per the regulation in the year 2000. The said submission does O.P.(KAT) No.66 of 2018 -:7:- not appear to be palatable to us for the reason that no action is stated as taken by the Medical Council of India, at any point of time, if at all, any wrong step was being pursued by the State Government at the relevant time contrary to the regulations issued by the Medical Council of India. That apart, no such record/pleading was ever placed by the MCI before the Tribunal, when the matter was finally heard. Similarly, no material has been produced by the petitioner as well to show what was the qualification at the relevant time i.e., when the 6[th] respondent got admission to the M.Ch course in the year 2003, more so, when a specific averment was raised by the 6[th] respondent that during the relevant period, she was duly qualified by virtue of possession of MS (ENT) to get admission to the course in question. 9. There is a case for the petitioner with reference to Annexure A6 judgment of a Division Bench of this Court with regard to the admissions to a Post Graduate course in the field of Neurosurgery where the basic qualification required was MS in General Surgery. The O.P.(KAT) No.66 of 2018 -:8:- admission given to the candidate in question was the subject matter of dispute and the verdict passed by a learned Single Judge was interdicted and the position was made clear by the Division Bench, in turn setting aside the admission for not possessing the proper qualification to get admission to the said course. That decision does not come to the rescue of the petitioner, in so far as this is not a case of 'admission' and the claim was not to have entry to the course in question, but a challenge raised against the promotion of the 6[th] respondent based on the qualification possessed by the 6[th] respondent pursuant to the study completed in M.Ch during the period from 2003 to 2006. It is to be noted that the qualification of the 6[th] respondent was not a subject matter of challenge, at any point of time, from the part of the petitioner, nor did the petitioner choose to implead the University in the party array, nor has raised any prayer to de-recognise the th degree possessed by the 6 respondent. 10. In the said circumstances, the degree of M.Ch possessed by the 6[th] respondent, awarded by a O.P.(KAT) No.66 of 2018 -:9:- competent University of the State stands in tact. The degree possessed by the 6[th] respondent is liable to be reckoned in the said circumstance and this alone has been done by the Tribunal by appreciating the facts and circumstances and also the relevant provisions of law. The verdicts passed by the Supreme Court as mentioned above, **Preethi Srivastava** ( _supra)_ and **Medical Council of India** _(supra)_ are not applicable to the case in hand. The idea and understanding of the petitioner raising a challenge against the verdict passed by the Tribunal is thoroughly wrong and misconceived. 11. It is relevant to note that the vacancy arose on 30.07.2015. The petitioner herein acquired the qualification of M.Ch only in the year 2013. By virtue of the relevant provisions of law, it was obligatory for the petitioner to have obtained five years' experience as on the date of arising the vacancy, to be considered for the post in question, which admittedly is not possessed by the petitioner. In the said circumstances, the petitioner is not eligible to be considered for the said post and no O.P.(KAT) No.66 of 2018 -:10:- interference is called for. The Original Petition is dismissed accordingly. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **DEVAN RAMACHANDRAN, JUDGE** bpr