Dr. Vijayendra S. Kanwar and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934** ## **WP(C).No. 13051 of 2012 (F)** ## **-----------------------------------------** ## **PETITIONER(S):** - **-----------------------** **1. DR.VIJAYENDRA S.KANWAR, S/O.JASBIR SINGH KANWAR, GURUNANAK AVENUE FATEGARH ROAD, HOSHIARPUR, PUNJAB.** **2. DR.SANDEEP BANSAL, S/O.UMESH CHANDRA BANSAL,** **1861, DAMPIER NAGAR, MATHURA, UTTAR PRADESH.** **3. DR.KUMAR RAJESH RANJAN, S/O.RAM DAYAL SHARMA,** **MAKRA, P.O.KAITHI, AURANGABAD, BIHAR.** **4. DR.NIKHIL RANJAN, S/O.ASOK KUMAR CHAUDHARY,** **NB HOUSE, SHUKLA COLONY, HINOO, RANCHI, JHARKHAND.** **5. DR.RAKESH JAIN, S/O.C.V.JAIN, TANGA, JATARA TIKAMGARH, MADHYA PRADESH.** **BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH** ## **RESPONDENT(S):** - **-----------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH AND FAMILY WELFARE THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695 001.** **3. THE COMMISSIONER FOR ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR THIRUVANANTHAPURAM-695 001.** **4. MEDICAL COUNCIL OF INDIA (MCI) REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR 8 DWARAKA PHASE 1, NEW DELHI-110 075.** **R1 TO R3 BY GOVT.PLEADER SRI.ROSHAN D.ALEXANDER BY ADV. SRI.ALEXANDER THOMAS, SC, MCI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss** ## **W.P.(C) NO.13051/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE CERTIFICATE SHOWING THE POST GRADUATE QUALIFICATION OF THE 1ST PETITIONER DATED 9-2-2010.** **EXHIBIT P2: TRUE COPY OF THE CERTIFICATE SHOWING THE POST GRADUATE QUALIFICATION OF THE 2ND PETITIONER DATED 6-2-2006.** **EXHIBIT P3: TRUE COPY OF THE CERTIFICATE SHOWING THE POST GRADUATE QUALIFICATION OF THE 3RD PETITIONER DATED 20-1-2010.** **EXHIBIT P4: TRUE COPY OF THE CERTIFICATE SHOWING THE POST GRADUATE QUALIFICATION OF THE 4TH PETITIONER DATED 12-7-2011.** **EXHIBIT P5: TRUE COPY OF THE CERTIFICATE SHOWING THE POST GRADUATE QUALIFICATION OF THE 5TH PETITIONER DATED 11-2-2008.** **EXHIBIT P6: TRUE COPY OF THE PROSPECTUS FOR PG SUPERSPECIALITY COURSE 2012 DATED 19-5-2012.** **P7:- COPLY OF THE PROVISIONAL RANK LIST FOR DM(CARDIOLOGY) DTD. 27.7.2012.** **P8:- COPY OF THE NOTIFICATION ISSUED BY DIRECTOR OF MEDICAL EDUCATION DT.D 27.7.2012.** ## **RESPONDENTS' EXHIBITS** **NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **tss** ## **P.N.RAVINDRAN, J.** ## **----------------------------------------W.P(C).No.13051 of 2012 ----------------------------------------Dated this the 9[th] day of August, 2012** ## **JUDGMENT** The petitioners, five in number, who hail from Punjab, Uttar Pradesh, Bihar, Jharkhand and Madhya Pradesh, have filed this writ petition challenging clause III(a)(i) and (ii) of Ext.P6 prospectus for admission to Post Graduate Super Speciality Courses, 2012 in the Medical Colleges in Kerala. The impugned clause in the prospectus reads as follows:- - _“III. Eligibility for admission:_ - _(a) Nativity: Applicant should have satisfied any of the following conditions._ _i) Indian Citizen of Kerala origin. ii) Have passed the MBBS Degree/PG Degree (MD/MS)/Dip.N.B. from any of the Medical Colleges in Kerala.”_ It is contended that by stipulating that the applicant should be Indian citizen of Kerala origin and have passed the MBBS Degree/PG Degree (MD/MS)/Dip.N.B., from any of the Medical Colleges in Kerala, students like the petitioners, who have passed out from colleges in other States and are not of Kerala origin, are **W.P(C).No.13051 of 2012** -:2:- denied admission to post graduate super speciality courses in Medicine in the State of Kerala. Relying on the decisions of the Apex Court in _**Dr.Pradeep Jain and others v. Union of India and others**_ , 1984 (3) SCC 654, _**Saurabh Chaudhuri v. Union of India**_ , 2003(11) SCC 146 and the Division Bench decision of this Court in _**Saurabh Jain v. State of Kerala**_ , 2011 (2) KLT 646 it is contended that the impugned stipulation offends Article 15(1) of the Constitution of India. 2. When this writ petition came up for admission hearing on 6.6.2012, this Court after hearing the learned counsel appearing for the petitioners, the learned Government Pleader appearing for respondents 1 to 3 and Sri.Alexander Thomas, learned standing counsel appearing for the Medical Council of India, permitted the petitioners to apply for admission to the super speciality course. This Court also directed that if the applications are otherwise in order, they shall be permitted to participate in the common entrance examination on a provisional basis subject to further orders to be passed by this Court. Pursuant to the interim order passed by this Court, all the petitioners applied and they were permitted to appear for the common entrance examination. Later, the petitioners filed I.A.No.10511 of 2012 for an order directing the Director of Medical Education and the Commissioner for ## **W.P(C).No.13051 of 2012** -:3:- Entrance Examinations to declare the results of the entrance examination in so far as it relates to the petitioners and to permit them to attend the counseling for DM (Cardiology) scheduled to be held on 31.7.2012. The said application came up for hearing on 30.7.2012. On that day, after hearing the learned counsel appearing for the petitioners and the learned Government Pleader, this Court directed that the fifth petitioner, who alone came out successful in the entrance examination, shall be entitled to participate in the counseling process subject to further orders to be passed by this Court. 3. The fifth petitioner has filed I.A.No.10710 of 2012 stating that in the entrance examination he secured 458.8803 marks and has been awarded rank No.11, that the total number of seats available in the general merit quota in the speciality of DM (Cardiology) is 12, that in the counselling held on 31.7.2012 at the office of the Director of Medical Education, Thiruvananthapuram he opted for admission to the DM (Cardiology) Course in Medical College, Kozhikode, but notwithstanding the fact that based on his rank he was entitled to be allotted to Medical College, Kozhikode for admission to the DM (Cardiology) Course, the Director of Medical Education did not issue the allotment letter. The fifth petitioner has in I.A.No.10710 ## **W.P(C).No.13051 of 2012** -:4:- of 2012 prayed for an order directing the Director of Medical Education to issue allotment letter to him so as to enable him to join the post graduate super speciality course in DM (Cardiology) at Medical College, Kozhikode. 4. When the writ petition came up for hearing today, the learned counsel appearing for the petitioners and the learned standing counsel appearing for the Medical Council of India submitted that the issue raised by the petitioners is covered in their favour by the decision of this Court in _**Saurabh Jain v. State of Kerala**_ , 2011 (2) KLT 646 and therefore, if the petitioners have come out successful in the entrance examination, they are entitled to allotment having regard to the rank obtained by them in the entrance examination. As regards the challenge to clause III(a) of the prospectus the learned Government Pleader contended that the stipulation in the prospectus does not amount to 100% reservation for applicants from Kerala and therefore, the State may be afforded an opportunity to file a counter affidavit. 5. I have considered the submissions made at the Bar by the learned counsel on either side. I have also considered the request made by the learned Government Pleader for an opportunity for the State of Kerala to file a counter affidavit. It is evident from a reading of the impugned stipulation in the ## **W.P(C).No.13051 of 2012** -:5:- prospectus that only Indian citizens of Kerala origin, who have passed the MBBS Degree/PG Degree (MD/MS)/Dip.N.B., from any of the Medical Colleges in Kerala are eligible for admission to the Post Graduage Super Speciality Courses in Kerala. Though the second limb of the stipulation may take in candidates who are allotted to Medical Colleges in the State in the all India quota, the stipulation that only Indian citizens of Kerala origin can apply for admission, in my opinion amounts to 100% reservation for Indian citizens of Kerala origin. A similar stipulation in the prospectus issued for the year 2010-11 was struck down by a learned single Judge of this Court in _**Anil Kumar v. State of Kerala**_ , 2010(4) KLT 149 and the said decision was upheld by a Division Bench of this Court in _**Saurabh Jain v. State of Kerala**_ , 2011 (2) KLT 646. The Division Bench held that 100% reservation provided in the prospectus through preference given to applicants from Kerala, is arbitrary and unconstitutional. In the light of the binding decision of this Court, to which the State of Kerala is a party, I am of the opinion that the fifth petitioner, who applied for admission in time, though pursuant to the interim order passed by this Court, has passed the entrance examination and has obtained rank No.11 in the general merit list for admission to DM (Cardiology) and had attended the counseling held on 31.7.2012, ## **W.P(C).No.13051 of 2012** -:6:- is entitled to be given admission in Medical College, Kozhikode for the said course. Since the other four petitioners have failed to qualify in the entrance examination, no relief can be granted to them. It is also not in dispute that having regard to the rank obtained by the fifth petitioner he is entitled for admission to DM (Cardiology) Course in any Medical College in Kerala. I accordingly dispose of the writ petition with a direction to respondents 1 to 3 to issue allotment letter to the fifth petitioner allotting him to Medical College, Kozhikode for admission to DM (Cardiololgy) Course. The allotment letter shall be issued to the fifth petitioner on the day he produces a certified copy of this judgment before the Director of Medical Education. Upon the fifth petitioner producing the allotment letter the Principal, Medical College, Kozhikode, shall admit him to the course. The fifth petitioner shall pay the fee stipulated by the Government. Registry to issue a certified copy of this judgment, if applied for, today itself to all the parties. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.13051 of 2012 ----------------------------** ## **JUDGMENT** **9[th] August, 2012**