Dr. Seeja P. v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 WA.No. 96 of 2008() ------------------AGAINST THE JUDGEMENT/ORDER IN WPC.3176/2007 Dated 04/04/2007 .................... APPELLANT: PETITIONER (NOT A PARTY TO THE WP) --------------------------------------------- DR. SEEJA P., LECTURER, DEPARTMENT OF ORAL AND MAXILLOFACIAL SURGERY, GOVERNMENT DENTAL COLLEGE, CALICUT, RESIDING AT SASTHAPRANAM, YASORAM GARDENS, OLLUR, THRISSUR-680 306. BY ADV. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN ## RESPONDENTS: PETITIONERS & RESPONDENTS 1 TO 13 ---------------------------------------------- 1. DR.JOSE THOMAS, PUTHIRIKKAL HOUSE, ELAMAKKARA P.O., ASHOKA ROAD, KOCHI-682 026. 2. DR. VIVEK NARAYAN, - 28/3354, 'VRINDHAVAN', CHERUPUSHPAM LANE, KADAVANTHRA, KOCHI-20. 3. DR. SAMEERA G.NATH, - 20/1312, "KRISHNEEYAM", THIRUVANOOR ROAD, PANNIYANKARA, KALLAI POST, CALICUT-673 003. 4. DR. RARUN, - "RESHMI", 2/996, REPUBLIC ROAD, ERANJIPPALAM, KOZHIKODE-673 006. 5. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 6. THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE, (SPECIAL DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. WA 96/2008 & CONN. 7. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 8. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, THIRUVANANTHAPURAM. 9. THE MEDICAL COUNCIL OF INDIA, NEW DELHI. 10. THE DENTAL COUNCIL OF INDIA, NEW DELHI. 11. THE KERALA GOVERNMENT DENTAL COLLEGE TEACHERS ASSOCIATION, BY ITS SECRETARY, DR. BINDU R., DEPARTMENT OF ORAL AND MAXILLOFACIAL SURGERY, GOVERNMENT DENTAL COLLEGE, CALICUT. 12. THE KERALA HEALTH SERVICE DENTAL SURGEONS ASSOCIATION, REPRESENTED BY ITS SECRETARY, DR. KRISHNAKUMAR, DENTAL SURGEON, TALUK HOSPITAL, ADOOR. 13. DR. MADHAVADAS, "RAGASUDHA", PERINGODE, PALAKKAD, NOW RESIDING AT FLAT NO.4, VAMARAJ APARTMENTS, LANE H, CHALAKUZHY ROAD, PATTOM, TRIVANDRUM. 14. DR. DEEPTI PAUL, MANDAPATHIL HOUSE, VMB ROAD, PATHADIPALAM, EDAPPALLY ROAD, KOCHI-24. 15. ARUN T.J., S/O. LATE M.THANKAMANI, "AISWARYA", NELLIVILA, MANNAMCODE, KUNNATHUNKAL P.O., KARAKONAM, TRIVANDRUM. 16. GULBAHAR ADIL, S/O. HAMIDULLAH, H.NO.295, SECTOR 46/A, CHANDIGARH (U.T.), NOW RESIDING IN ABILASH, 4/420, A.G.ROAD, CALICUT-673 032. 17. DR. JAYALAKSHMI P.S., W/O. DR. DILEEP KUMAR K.V., AGED 40 YEARS, RESIDING IN DILRAJ, OLARIKKARA, PULLAZHI P.O., TRICHUR-12. BY GOVERNMENT PLEADER T.B.HOOD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2008, ALONG WITH WA NO.2696 OF 2007 AND OTHERS, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.B.KOSHY & K.M.JOSEPH, JJ.** -------------------------------------------------------------- W.A.Nos.96/2008, 2998/2007, 2999/2007, 1186/2007& 2696/2007 ---------------------------------------------------------------- Dated this the 15[th] day of January, 2008 ## **JUDGMENT** ## **KOSHY, J.** All these writ appeals are against the common judgment dated 4[th] April 2007 in W.P.(C)No.3176/2007. The party appellants are service candidates and they applied for post graduate course in Dental Surgery. Up to 2005, the service quota was filled up depending upon the seniority. But in 20052006 entrance examination was conducted. In 2007 prospectus, there was no provision for conducting entrance examination. The learned judge held that since in the prospectus issued for 2005-2006 there was no provision for conducting of entrance examination. But from 2008 onwards entrance examination should be conducted on the basis of the decision of the Appex Court in **State of M.P. vs. Gopal D. Tirthani ((2003) 7 SCC 83)** . State as well as the petitioners filed appeal petitions and it is submitted that the above Appex court decision was based on the regulations of All India Medical Council. Such a provision to conduct entrance examination is not mentioned by WA96/2008 & conn. 2 the Dental Council of India and therefore it is not at all necessary to conduct entrance examination for the service candidates. The Government Pleader also submitted that there is no compulsion under the Dental Council rules to conduct entrance examination. The learned counsel appearing for the Dental Council of India submitted that revised regulations were passed by the Dental Council of India by which entrance examination has been made compulsory. With regard to the selection of Post Graduate students the present position as per the regulations is as follows. (1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit. (2) For determining the academic merit, the university/ institution may adopt any one of the following procedures both for P.G. Diploma and MDS degree courses: (i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of universities in the same state; or WA96/2008 & conn. 3 (ii) On the basis of merit as determined by a centralised competitive test held at the national level;or (iii) On the basis of the individual cumulative performance at the first, second, third & Final B.D.S. examinations, if such examinations have been passed from the same university; or (iv) Combination of (i) and (iii). 2. Therefore merely on the basis of seniority, one will not get eligibility to admission. Admission is regulated by entrance examination results or academic results. The Supreme Court in the decision reported in **State of M.P. vs. Gopal D. Tirthani** ((2003) 7 SCC 83) issued the following directions: (1) The judgment of the High Court, to the extent to which conferral of benefit by grant of weightage to inservice candidates (i.e., doctors in the employment of the State Government) on the basis of their service rendered in rural/tribunal areas and also to the extent to which the reduced eligibility qualification for women candidates from out of in-service candidates have been annulled, is set aside. WA96/2008 & conn. 4 (2) The State Government shall frame fresh rules governing the P.G. Entrance Examination and P.G. (inservice) admissions consistent with the law laid down herein above. The rules shall as far as possible be one set of rules framed by the Medical Education Department and Public Health and Family Welfare Department in consultation with each other. If it is not possible to frame one set of rules then the two Departments may frame separate rules but care has to be taken to avoid any scope for confusion or inconsistency. (3) The eligibility for sponsorship of the 36 successful in-service candidates in the Pre-PG Entrance Examination, 2003 shall be scrutinized and decided ex post facto. A fresh entrance examination for the remaining seats meant for in-service candidates shall be held at the earliest and, in any case, within a period of one month from today. Such of the candidates who participated in the Pre-PG Entrance Examination of the year 2002 and whose results have not been declared consequent upon the judgment of the High Court, would be allowed an opportunity of taking this examination relaxing the upper age limit, if required. The candidates who are otherwise eligible for taking the PG Entrance Test, 2003 shall also be allowed to participate. Such number of candidates shall be declared passed as is WA96/2008 & conn. 5 equivalent to number of seats meant and available for in-service candidates adjusting the number of candidates already declared successful i.e. 36, subject to satisfying the sponsorship criteria. (4) A consolidated merit list of successful in-service candidates shall be prepared. Such list shall include: (i) the 36 candidates who have already been declared successful and have also satisfied the sponsorship criteria, and (ii) the candidates declared successful at the PG Entrance Test which will now be held for the remaining seats pursuant to this judgment. The consolidated list having been prepared, the order of merit shall be fixed by assigning weightage to rural service consistently with the prevalent rules and allow participation in counselling to the extent of available seats. (5) Counselling for the in-service candidates shall be held as per the consolidated merit list of successful in-service candidates prepared in terms of the abovesaid directions. Counselling, if any, already held for 36 in-service candidates shall be ignored and not given effect to. (6) If the required number of in-service eligible candidates do not qualify at the Pre-PG Examination now held, the seats so left vacant shall be diverted and made available for the open category candidates. WA96/2008 & conn. 6 3. The Appex Court though upheld the provisions for service quota directed to select candidates for service quota also on the basis of common entrance test. Therefore, while making admissions to the MDS course, regulations issued by the Dental Council of India and directions of the Supreme Court should be complied with. Accordingly, there is no infirmity in the common entrance test and we see no ground to interfere. The learned judge has considered the matter correctly and no interference is required. With the above observations writ appeals are dismissed. ## **J.B.KOSHY,JUDGE** ## **K.M.JOSEPH, JUDGE** csl