Dr. Sonaline Suzatte Fernandez and Dr. Kankakumar R. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936** **WP(C).No. 8143 of 2014 (P) ---------------------------** **PETITIONERS:** **--------------** ## **1. DR.SONALINE SUZATTE FERNANDEZ,** **CASUALTY MEDICAL OFFICER, GENERAL HOSPITAL, ERNAKULAM KOCHI - 682 011.** ## **2. DR.KANKAKUMAR.R.,** **ASSISTANT SURGEON, COMMUNITY HEALTH CENTRE, VIZHINJAM THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.M.K.DAMODARAN (SR.)** **SRI.P.K.VIJAYAMOHANAN** **SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S.** **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT** **GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF MEDICAL EDUCATION,** **GOVERNMENT OF KERALA, THIRUVANANTHAPURAM -695 011.** **3. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR THIRUVANANTHAPURAM - 695 001.** **R1 -R 3 BY GOVERNMENT PLEADER SRI. ROSHAN ALEXANDER.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2014, ALONG WITH WPC. 8432/2014 & WPC. 8600/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 8143 of 2014 (P)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------** **EXT.P1: TRUE COPY OF THE NOTIFICATION NO.CEE/5656/2013/PGM 2014/TA3 DATED 05/11/2013 OF THE 3RD RESPONDENT.** **EXT.P2: TRUE COPY OF THE PROSPECTUS ISSUED BY THE 1ST RESPONDENT VIDE G.O.(RT) NO.554/2014/ H&FWD DATED 18/02/2014.** **EXT.P3: TRUE COPY OF THE GOVERNMENT ORDER, G.O.(RT) NO.836/2014/H&FWD DATED 10/03/2014.** **RESPONDENT(S)' EXHIBITS: NIL.** **------------------------** **TRUE COPY.** **P.A. TO JUDGE.** **KP** A.M. Shaffique, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 8143, 8432 & 8600 of 2014 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 12[th] day of June, 2014. ## J U D G M E N T These writ petitions are filed by candidates who appeared for the examination conducted by the National Board of Examinations (NBE) for the Post-graduate Medical Degree/Diploma Courses 2014. State Government also adopted the result of the said examination as qualifying test for preparation of rank list for giving admission in the Medical colleges/Institutions in State of Kerala. The result of the examination was published on 31.1.2014 and the prospectus was issued on 18.2.2014. As per the prospectus, in regard to the 'difficult rural service', the candidates were given weightage by adding one year for every completed one year subject to a maximum of eight years. The said service will be added to the total service in the Health Services for preparing the seniority list. Candidates who gets qualifying marks in the examination will be selected on the basis of seniority and therefore seniority list gains importance. 2. The petitioners' complaint is that after publication of the prospectus, by a Government Order dated 10.3.2014, the weightage for 'difficult rural service' is enhanced to 4 years for every completed one year service. This, according to the petitioners, will create marked W.P(C) Nos. 8143, 8432 & 8600 of 2014 -: 2 :- difference in the seniority list to be prepared for admission to Post-graduate Medical Degree/Diploma Courses. 3. The documents relied upon are as described in W.P.(C) No.8143/2014, unless otherwise stated. Ext.P1 is the notification dated 5.11.2013, by which State Government adopted the examination conducted by NBE as the qualifying test for giving admission in the Medical colleges/Institutions in State of Kerala. Ext.P2 is the prospectus and Ext.P3 is the Government order by which amendment is made to clause 7-1.3 of the prospectus. 4. The contentions urged by the petitioners are three-fold. One is that after issuance of the prospectus, the same cannot be modified by giving benefit to certain persons who are having 'difficult rural service' by enhancing the weightage from one year to four years, which will tilt the seniority list in a substantial manner and other candidates who were eligible as per the prospectus issued will be put in a disadvantageous position. Reference is also made to various judgments of the Supreme Court which has been crystallized by the judgment of this Court in W.P(C) Nos. 8143, 8432 & 8600 of 2014 -: 3 :- ## **Sreeja v. State of Kerala** , 2013 (1) KLT 345. 5. The second contention urged is with reference to the power of the Government to issue such a notification in the prospectus without complying with the provisions of the Kerala Medical Officers Admission to Post-graduate Courses under Service Quota Act, 2008 (hereinafter referred to as the Act) and the Rules framed thereunder. It is inter alia provided under the Rules that in order to modify terms of the prospectus, the Government has to form a committee and it is based on the decision of the committee that such modifications can be made. While issuing Ext. P3 Government Order, no such committee has been constituted and the Government has therefore taken an arbitrary approach in the matter and amended the prospectus without making any enquiry in the matter as contemplated by the Rules. 6. The third contention taken is that Ext. P3 Government Order is absolutely arbitrary in so far as it affects all the services candidates who are eligible to come within the seniority list in terms of the prospectus issued as per Ext.P2. 7. Counter affidavit is filed on behalf of the 1[st] W.P(C) Nos. 8143, 8432 & 8600 of 2014 -: 4 :- respondent inter alia stating that Post-graduate medical admission in service quota is controlled by the provisions of the Act. Rules have been framed under the Act as Kerala Medical Officers' Admission to Postgraduate Courses under Service Quota Act Rules, 2010 (for short 'the Rules'). As per Rule 8(iii), different sub quotas are provided for different categories eligible to get special treatment by way of fixation of quota and difficult rural area quota is one among the said categories. Reference is made to Rule 8(iv) to indicate that the Government has the power to continue or discontinue the sub quotas for all Postgraduate admissions under the service quota. It is further stated that in the year 2013, the quota for Difficult Rural Area Service was abolished and weightage system was introduced for the service rendered at Difficult Rural Area. Though the same was challenged by certain doctors, this Court had upheld the said incorporation under the Rules. It is further stated that prospectus is issued in terms of Section 5 (3) and Clause 19 of the prospectus provides that the Government may, at any time on their volition or otherwise, after calling for the records of the case, W.P(C) Nos. 8143, 8432 & 8600 of 2014 -: 5 :- revise any order passed by the subordinate authority. It is therefore contended that the Government has absolute powers with reference to the prospectus issued and it was well within the power of the Government to have issued Ext.P3. Further, it is contended that the apprehension expressed by the petitioners is without any basis. It is also stated that the Government cannot ignore services rendered by doctors in difficult rural areas who play a vital role in materialising the health system promoted by the Government and therefore such persons deserve preferential treatment to be given for their valuable service. It is therefore contended that being a policy decision of the Government, it is not open for the petitioners to challenge the same. 8. Having regard to these factual and legal contentions urged, I am of the view that the petitioners have projected a justifiable case for interference. The position is well covered by the judgment of this Court in **Sreeja's case (supra)** . In that case, this Court was considering whether the Government has the power to amend the prospectus at the final stage of admission process. That was a case in which the question was W.P(C) Nos. 8143, 8432 & 8600 of 2014 -: 6 :- relating to admission to Post B.Sc. Degree Course under service quota. After referring to the entire case law on the subject, this Court considered the question as to whether the prospectus can be amended at any time after the admission process has proceeded considerably and after publication of the rank list. After referring to various judgments of the Apex Court in **Dr. Preeti Srivastava and Another v. State of M.P. & Others** , (1999) 7 SCC 120), **P.V. Indiresan v. Union of India & Others** , (2011) 8 SCC 441), **Parmender Kumar & Others v. State of Haryana & Others** , (2012) 1 SCC 177) and various other judgments, this Court formed an opinion that even if there is power to amend the prospectus, it cannot be exercised at the final stage of the admission process. Such power could have been exercised at least before the last date for submission of the application and the admission should be based on the conditions set out in the prospectus as it stood on the last date for submission of the application. 9. In the light of the aforesaid law laid down by this Court, I am of the view that there is no justification on the part of the Government to have interfered with W.P(C) Nos. 8143, 8432 & 8600 of 2014 -: 7 :- the prospectus by virtue of Ext. P3 Government Order after the admission process has commenced. 10. The learned Government Pleader submits that being a policy matter, the Government can decide all issues relating to service conditions in difficult rural areas, taking into consideration their commitment in working in such areas. No doubt, Government can take such a policy decision and of course the Government can make amendment to the prospectus as well. But, amendments contemplated under Clause 19 of the prospectus can only relate to certain mistakes that may be pointed out or to correct unworkable provisions in the prospectus. The said power cannot be exercised in such a manner that it affects the candidates in a substantial manner. The Act prescribes that the admission to Post-graduate/Diploma Courses in Medicine shall be based on seniority. There is an expectancy for every candidate at the time when they write the examination and when they qualify the examination in terms with the prospectus. When, during that process, the prospectus is amended by giving more benefit to persons who had undergone service in 'difficult rural area' than what was originally W.P(C) Nos. 8143, 8432 & 8600 of 2014 -: 8 :- contemplated, definitely it will tilt the seniority and many persons who aspire or expect to get admission may lose their opportunity. Such a situation should not happen and that is the very basis for the law laid down by this Court in **Sreeja's case** (supra). Having regard to the aforesaid finding, these writ petitions are allowed and the impugned Government order, G.O.(Rt)No.836/2014/H&FWD dated 10.3.2014 of the Health & Family Welfare (S) Department is hereby quashed. Tds/