Dr. Salini G.K. v. District Medical Officer (Homoeopathy), Kannur, and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944 WP(C) NO.11512 OF 2021** ## **- PETITIONER :** DR.SALINI G.K., AGED 37 YEARS W/O.SUBHASH M.S., PUTHENPARAMBATH HOUSE, KADAMBOOR, KADACHIRA P.O., KANNUR DISTRICT - 670 621. BY ADVS. K.MOHANAKANNAN T.V.NEEMA **- RESPONDENTS :** 1 DISTRICT MEIDCAL OFFICER (HOMOEO), SECOND FLOOR, F BLOCK, CIVIL STATION, KANNUR - 670 002 2 STATE MISSION DIRECTOR, NATIONAL AYUSH MISSION, FIRST FLOOR, DEEPA ARCADE, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM - 695 001. 3 STATE PROGRAMME MANAGER (HOMOEOPATHY) OFFICE OF THE NATIONAL AYUSH MISSION, FIRST FLOOR, DEEPA ARCADE, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM - 695 001. 4 SHARATH KUMAR P. PAROL HOUSE, ARIYALLUR P.O., MALAPPURAM DISTRICT - 676 312. BY ADVS. SRI.P.U.SHAILAJAN SRI.SUNIL KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.11512 OF 2021 -: 2 :- ## **JUDGMENT** ## **Dated this the 15th day of September, 2022** This writ petition is filed seeking the following reliefs :- - “i) To issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Ext.P10 and Ext.P16 and quash the same. - ii) To issue a writ of mandamus or any other appropriate writ or order or direction directing respondents 1 to 3 to appoint the petitioner in the post notified as per Ext.P9 within a time frame to be fixed by this Hon'ble Court.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 as well as the learned counsel appearing for the 4[th] respondent. 3. It is submitted by the learned counsel for the petitioner that the petitioner is a Homeopathic Doctor and a Post Graduate in Homeopathy (Pediatrics) with five years experience in Homeopathy hospitals as evident from Exts.P1 to P8. It is submitted that Ext.P9 notification was published by the 1[st] respondent calling for applications for appointment of a Post Graduate Homeo Doctor. It was stated that WP(C) NO.11512 OF 2021 -: 3 :- preference would be given to persons having Post Graduation in Pediatrics and Practice of Medicine in Homeopathy. It is submitted that the petitioner as well as the 4[th] respondent were applicants for the post pursuant to Ext.P9. It is submitted that the 4[th] respondent who had only PG Homeopathy in Repertory has been appointed in preference to the petitioner who had a PG Homeopathy in Pediatrics. It is submitted that as is evident from Ext.P11 files obtained by the petitioner under the Right to Information Act that the appointment is to be made in Pediatric clinics and that the petitioner who was a Post Graduate in Homeopathy (Pediatrics) was entitled to be appointed in preference to the 4[th] respondent. It is contended that it is only on account of the high marks given to the 4[th] respondent in the interview that the petitioner was not appointed. 4. The petitioner had approached this Court seeking consideration of his objections as against the selection and Ext.P14 judgment was rendered on 19.3.2021 directing the consideration of the petitioner's claim. It is submitted that Ext.P16 order has been passed rejecting the petitioner's claim WP(C) NO.11512 OF 2021 -: 4 :- relying solely on the report of the District Medical Officer who was part of the selection committee. It is contended by the learned counsel for the petitioner that the appointment given to the 4[th] respondent, without considering the better claim of the petitioner, is completely illegal and invalid. 5. A counter affidavit has been placed on record by the 1[st] respondent contending that due weightage had been given to the petitioner for the desirable qualification which was possessed by the petitioner. It is submitted at paragraph 6 of the counter affidavit as follows :- “6. It is submitted that, the walk in interview for the selection of candidates for the post of PG Medical Officer (Homeopathy) was conducted on 11.02.2021 at 10.30 am in the office of the District Medical Officer (Homoeo), 7 candidates attended the interview (5 female candidates and 2 male candidates). 5 candidates having qualification in PG (Homoeopathy) and 2 with MD (Homoeo) Pediatrics and Practice of Medicine. The Petitioner was one among the two having MD (Homoeo) Pediatrics and Practice of Medicine qualification. All the candidates were entitled to 10 marks for their basic qualification. The Petitioner and the other candidate having MD qualification was awarded 5 marks for the specialization. The candidates in the rank list from 1 to 7 were granted, 28 marks (56%), 22 marks (44%), 21 marks (42%), 20 marks (40%), 19 marks (38%), 18 marks (36%) and 17 marks (34%) respectively for their performance in interview. The WP(C) NO.11512 OF 2021 ## -: 5 :- above marks were calculated by taking average of the marks awarded by the interview board members. By totaling the marks obtained for all the criteria considered, each candidate in the rank list from 1 to 7 obtained 38, 37, 36, 30, 29, 28 and 27 marks respectively. It is thus submitted that the selection was done purely on the basis of merit and top rank holder (4[th] Respondent) surpassed all other applicants in terms of interview performance and total marks. There is no tinge of bias or discrimination in the selection process. The 4[th] Respondent was appointed only after conducting due selection process.” It is submitted that Ext.P9 notification specifically states that the appointment is to the post of PG Medical Officer. Post Graduation in Homeopathy is the qualification prescribed and MD Homeopathy in Pediatrics is only a desirable qualification. It is submitted that since the petitioner had been given all due weightage for possessing the specialisation, the 4[th] respondent had been found more suitable on account of his performance in the interview. The petitioner cannot be said to be aggrieved by the selection or the decision as evident from Ext.P16 impugned order. 6. The learned Government Pleader would also refer to the report of the District Medical Officer which was relied on in Ext.P16 with regard to the conduct of the selection. WP(C) NO.11512 OF 2021 -: 6 :- 7. The 4[th] respondent has also placed a detailed counter affidavit on record, wherein it is contended that the basic qualification required as evident from Ext.P9 was a Post Graduate Degree in Homeopathy. It is submitted that the 4[th] respondent had a BHMS degree and a Homeopathic Post Graduate degree, that is, MD Homeopathy (Repertory) from the Government Homeopathic Medical College, Kozhikode. It is submitted that the 4[th] respondent had good academic record and that he had performed extremely well in the interview conducted pursuant to Ext.P9. Exts.R4(a) and R4(b) communications produced by the 4[th] respondent would show that the qualification required for the post was only Post Graduation in Homeopathy and that the 4[th] respondent was fully qualified for appointment. It is contended that the petitioner was granted five additional marks for possessing the specialisation of Pediatrics in MD Homeopathy and that there is absolutely no material to show that there was any illegality in the selection conducted. 8. The learned counsel also places reliance on a decision of the Apex Court in **Secy. (Health) Deptt. of** WP(C) NO.11512 OF 2021 -: 7 :- **Health and F.W. and another** v. **Anita Puri and others** [1996 KHC 1531] to contend that where the selected person has the required basic qualification prescribed for the post, a person holding the desirable qualification as provided in the notification cannot contend that only because he has the desirable qualification he has compulsorily to be appointed. The Apex Court had held as follows :- “7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. Is higher qualification than the minimum qualification required for the post and the Respondent No.1 was having that degree. The question then arises is whether a person holding a M.D.S. Qualification is entitled to be selected and apointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of a person for the post, the expert body like Public Service WP(C) NO.11512 OF 2021 -: 8 :- Commission in the absence of any statutory criteria has the discretion of evolving its mode evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basic of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held; his general aptitude for the job to be ascertained in course of interview, extra curriculum activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent No. 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.” 9. I have considered the contentions advanced on either side. The contention of the petitioner is that a specialisation in Homeopathic Repertory is only a quick reference version of the _materia medica_ that indexes the symptoms and then the associated remedies and that therefore, the qualification held by the 4[th] respondent does not WP(C) NO.11512 OF 2021 -: 9 :- enable him to work in a Pediatric clinic. It is clear from Ext.P9 that the qualification required for appointment was a Post Graduation in Homeopathy and that MD Homeopathy (Pediatrics) or Practice of Medicine was only a desirable qualification. It is clear from Ext.P11 produced by the petitioner itself that 5 additional marks had been granted to the petitioner for possessing the desirable qualification. The respondent, after considering the complaint raised by the petitioner, has specifically adverted to the contentions and has held that since five marks had been given to the candidates having PG specialisation and the Board members have unanimously taken a decision that the 4[th] respondent was better suitable for appointment, there is no illegality in the appointment process. Though the petitioner does possess the desirable qualification, it is clear that he had been granted due weightage for the desirable qualification possessed by her. In the above factual background, this Court would not be justified in interfering in the subjective opinion arrived at by the duly formed selection committee with regard to the comparative merits of the candidates. The fact that the WP(C) NO.11512 OF 2021 -: 10 :- petitioner possesses the desirable qualification by itself, cannot lead to any inference that the petitioner is better suitable for the employment. In the result, the prayers as sought for in the writ petition are not liable to be granted. The writ petition fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/16.9.2022 WP(C) NO.11512 OF 2021 ## -: 11 :- ## **APPENDIX OF WP(C) 11512/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DEGREE CERTIFICATE ISSUED BY MGR MEDICAL UNIVERSITY DATED 20-9-2008 EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 31-3-2012 ISSUED BY THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, KARNATAKA EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 10-8-2018 EXHIBIT P4 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE HOMEOPATHIC MEDICAL COLLEGE DATED 13-22013. EXHIBIT P5 TRUE COPY OF THE EXPERIENCE CERTIFICATE OF HOMEOPATHIC MEDICAL COLLEGE DATED 10-10-2020 - EXHIBIT P6 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE DISTRICT MEDICAL OFFICER HOMEOPATHY, KANNUR DATED 6-6-2019. EXHIBIT P7 TRUE COPY OF THE EXPERIENCE CERTIFICATE DATED 15-6-2020 GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, KOZHIKODE. EXHIBIT P8 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE GOVERNMENT MEDICAL COLLEGE KOZHIKODE DATED 9-2-2021 EXHIBIT P9 TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE DESHABHINI DAILY DATED 6-2-2021 EXHIBIT P10 TRUE COPY OF THE PROCEEDING No.A1/1286/2020/DOK DATED 16-2-2021 OF THE 1ST RESPONDENT. EXHIBIT P11 TRUE COPY OF THE COMMUNICATION No.A1/325/2021/ DOK DATED 27-2-2021 SENT BY THE 1ST RESPONDENT WITH ANNEXURES EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 23-2-2021 WP(C) NO.11512 OF 2021 -: 12 :- SUBMITTED BEFORE THE 3RD RESPONDENT BY THE PETITIONER. EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 24-2-2021 SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN WRIT PETITION 6633/2021 DATED 19-3-2021 Exhibit P15 TRUE COPY OF THE COMMUNICATION SENT BY THE 3RD RESPONDENT TO THE PETITIONER DATED 19-4-2021 Exhibit P16 TRUE COPY OF THE PROCEEDINGS No.NAM/ADMIN/1123/ 2018/SPMSU DATED 3-5-2021. RESPONDENTS' EXHIBITS :- EXHIBIT R4(a) : TRUE COPY OF THE LETTER DATED 7.12.2020 ISSUED BY THE DISTRICT MEDICAL OFFICER (HOMEO), KANNUR TO THE STATE MISSION DIRECTOR, THIRUVANANTHAPURAM. EXHIBIT R4(b) : TRUE COPY OF THE LETTER DATED 4.2.2021 ISSUED BY THE STATE PROGRAMME MANAGER OF NATIONAL AYUSH MISSION TO THE DISTRICT MEDICAL OFFICER (HOMOEO), KANNUR. EXHIBIT R4(C) : TRUE COPY OF THE LETTER DATED 5.2.2021 ISSUED BY THE DISTRICT MEDICAL OFFICER (HOMEO), KANNUR TO THE INFORMATION OFFICER, KANNUR. EXHIBIT R4(c)(1) : TRUE COPY OF THE ADVERTISEMENT GIVEN TO THE PAPER ISSUED BY THE DISTRICT MEDICAL OFFICER (HOMOEO), KANNUR.