Dr. Vineetha V.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934** ## **WP(C).No. 18359 of 2012 (T)** **---------------------------** ## **PETITIONER : -** **------------------------** **DR. VINEETHA.V.S, 'MULLASSERIL', VARA-36, ARAPPURA, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM-695013.** **BY ADVS.SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMAR** ## **RESPONDENTS : -** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695001.** **3. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695001.** **4. COMMISSIONER FOR ENTRANCE EXAMINATIONS, THIRUVANANTHAPURAM-695001.** **5. DR.ROOPCHAND.P.S.,** - **'SABARI', PERUNNA.P.O., CHANGANASERRY, PIN 686102, KOTTAYAM DISTRICT.** **6. DR.MURUGAN.C.NAIR, 'MURUGA SADANAM', MOOLAMATTAM P.O., PIN 685589, IDUKKI DISTRICT.** **R6 BY ADVS. SRI.MANU GOVIND SRI.A.JAYASANKAR** **SRI.ANIL VINCENT SRI.V.H.NOUFALMON R5 BY ADV. SRI.P.NARAYANAN BY GOVERNMENT PLEADER SRI. ROSHEN D. ALEXANDER BY ADV. SRI. ALEXANDER THOMAS, SC, MCI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 18359 of 2012 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT P1 : TRUE COPY OF THE PROSPECTUS FOR ADMISSION TO POST GRADUATE SUPER SPECIALITY COURSES, KERALA - 2012 PUBLISHED BY THE GOVERNMENT.** **EXT P2 : TRUE COPY OF THE DISTRIBUTION OF AVAILABLE 90 SEATS PUBLISHED BY THE 2[nd] RESPONDENT.** **EXT P3 : TRUE COPY OF THE REPRESENTATION DATED 31.07.2012 FILED BY THE PETITIONER.** **EXT P4 : TRUE COPY OF THE SERVICE QUOTA LIST PUBLISHED BY THE 4[th] RESPONDENT.** **EXT P5 : TRUE COPY OF THE SERVICE QUOTA ACT, 2008. EXT P6 : TRUE COPY OF THE G.O. (Rt) NO.2535/2012/H&FWD DATED 30.07.2012 ISSUED BY THE GOVERNMENT.** - **EXT P7 : TRUE COPY OF THE REQUEST DATED 06.08.2012 SUBMITTED BY THE PETITIONER FOR COPY OF THE SELECT LIST OF CANDIDATES TO POST GRADUATE SUPER SPECIALITY, 2012.** - **EXT P8 : TRUE COPY OF THE LIST OF CANDIDATES SELECTED TO POST GRADUATE SUPER SPECIALITY 2012 POSTED IN THE WEBSITE ON 06.08.2012.** **EXT P9 : TRUE COPY OF THE DISTRIBUTION OF SEATS FOR THE YEARS 2010-11 & 2011-12 PUBLISHED AS PART OF THE PROSPECTUS BY THE RESPONDENTS 1, 2 & 3. EXT P10 : TRUE COPY OF THE SEAT DISTRIBUTION FORMING PART OF PROSPECTUS PUBLISHED BY THE 1[st] RESPONDENT.** ## **RESPONDENTS' EXHIBITS :** **EXT R5(a) : COPY OF THE CORRECTED LIST OF SERVICE QUOTA CANDIDATES.** **// TRUE COPY //** ## **P.A. TO JUDGE** ## **DMR/-** ## **P.N.RAVINDRAN, J.** ## **-----------------------------------------** ## **W.P.(C).No.18359 of 2012** ## **----------------------------------------Dated this the 19[th] day of December, 2012** ## **JUDGMENT** The petitioner, a doctor by profession, applied for admission to the Post Graduate Super Specialty Course in Neurology pursuant to Ext.P1 prospectus. As per Ext.P1 prospectus, applications were invited for admission to the following courses:- 1. M.Ch. Pediatric Surgery 2. M.Ch. Plastic Surgery 3. M.Ch. Genito Urinary Surgery 4. M.Ch. Thoracic Surgery 5. M.Ch. Neuro Surgery 6. M.Ch. Gastroenterology 7. D.M. Cardiology 8. D.M. Gastroenterology 9. D.M. Neurology 10.D.M. Nephrology 11.D.M. Pulmonary Medicine 2. The total number of available seats and the manner in which the seats are to be distributed, as set out in Ext.P1 prospectus, are given below:- ## **W.P(C).No.18359 of 2012** ## -:2:- |**_Sl._**<br>**_No._**|**_Name of the Course_**|**_Total_**<br>**_Seats_**|**_General_**<br>**_Merit_**|**_MES_**<br>**_Quota_**|**_Health_**<br>**_Services_**<br>**_Quota_**| |---|---|---|---|---|---| |1|M.Ch. Pediatric Surgery|11|9|2|| |2|M.Ch. Plastic Surgery|5|5||| |3|M.Ch.Genito Urinary Surgery|13|11||2| |4|M.Ch.Thoracic Surgery|7|7||| |5|M.Ch.Neuro Surgery|11|9|1|1| |6|M.Ch.Gastroenterology|1|1||| |7|D.M.Cardiology|18|12|3|3| |8|D.M.Gastroenterology|10|9|1|| |9|D.M.Neurology|7|4|2|1| |10|D.M.Nephrology|6|4||2| |11|D.M.Pulmonary Medicine|1|1||| ||**Total**|90|72|9|9| It was stipulated that out of the 90 seats available in the various specialties, 9 seats will be set apart for Medical Education Service quota and 9 seats for the Health Services quota. The rest of the seats (72) were set apart for general merit. It was also stipulated that seat reservation will be made in terms of section 5(1) of the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008, a copy of which is on record as Ext.P5. 3. The petitioner applied for admission in the general merit quota. Respondents 5 and 6 applied for admission in the service quota. The petitioner secured higher marks in the entrance ## **W.P(C).No.18359 of 2012** -:3:- examination than respondents 5 and 6 who secured 261.1085 marks and 329.2559 marks respectively. Both of them are Doctors working in the Health Services Department. After Ext.P1 prospectus was issued, the Medical Council of India issued a letter of permission for starting new Postgraduate Super-specialty Courses in DM Neurology and M.Ch.Genito Urinary Surgery at Government TD Medical College, Alappuzha with two seats each, in both the disciplines. Consequently, the Government issued G.O.(Rt)No.2535/2012/H&FWD dated 30.7.2012 (Ext.P6) allotting one seat each in the newly sanctioned courses to the service quota. With the permission issued by the Medical Council of India to start new Postgraduate Super-speciality Course in DM Neurology in Government TD Medical College, Alappuzha, the total number of seats in DM Neurology stood increased from 7 to 9. Four out of the nine seats in DM Neurology were set apart for the service quota in terms of the provisions contained in the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008, referred to above. But for the fact that 4 out of 9 seats stood allotted to service quota candidates, the petitioner would have got admission for DM Neurology in one of the Medical Colleges. It is in the background of these facts that the petitioner **W.P(C).No.18359 of 2012** -:4:- has filed this writ petition for an order directing respondents 1 to 3 to allot one seat to her. 4. The principal contention raised in the writ petition is that under the provisions contained in the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008, the Government can only set apart seats not exceeding 40% of the total seats available in an academic year for selection of Medical Officers under service quota, that by setting apart 4 out of 9 seats for Medical Officers in the service quota, the Government have violated the said stipulation and therefore, the admission given to the 4[th] candidate in the service quota is liable to be annulled and the petitioner given admission against the said seat for DM Neurology. It is contended that the reservation for service personnel exceeds the 40% permitted under the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008. In other words, the contention of the petitioner is that in the 11 disciplines in respect of which applications were invited by Ext.P1 prospectus, reservation has to be done discipline-wise and not taking the total number of seats in all the disciplines together. ## **W.P(C).No.18359 of 2012** -:5:- 5. The Director of Medical Education has filed a counter affidavit dated 29.9.2012. Paragraphs 4, 5, 8, 9, 10 and 11 which are relevant for the purpose of this case are extracted below:- _“4. It is also worthwhile to mention by virtue of Exhibit P6, Government took a conscious decision to earmark the seats for subject D.M.Neurology on necessity basis. The conscious decision taken by the Government by virtue of Exhibit P6 is on the basis that there is dearth of qualified professionals in Super Speciality subjects especially in Neurology in Public Health Sector. This is purely a policy decision taken by the Government without violating any of the statutory norms or the fundamental rights of any of the citizens of the country. In as much as policy decision taken by virtue of Exhibit P6, is not in violation of any of the fundamental rights of the petitioner or similarly situated persons, Exhibit P6 is in order and is liable to be upheld._ _5. It is submitted that Government have taken a policy decision to start Cardiology, Nephrology and Neurology services at District Hospitals. Therefore, the qualified service Doctors are required to meet the demands at the District Hospitals and Government are bound to ensure the service of such Doctors in these institutions. Hence the PG Super Speciality Selection Committee meeting held on 28.07.2012 has decided to earmark seats for Service quota candidates on necessity basis._ ## **W.P(C).No.18359 of 2012** -:6:- _xxx xxx_ _8. The Prospectus for PGSS-2012 was approved vide G.O.(Rt)No.1679/2012/H&FWD dated 19.05.2012 with a total number of 90 seats in various specialities. The total number of seats for DM Neurology was then 7. Out of 7 seats, 3 seats were earmarked for service quota candidates (ie., 2 seats for Medical Education Service and 1 for Health Service Quota candidate). Going by petitioner's argument and calculation, the percentage of seats set apart for service quota candidates in D.M.Cardiology itself comes to almost 43%. The petitioner was also aware of this fact but did not lodge any complaint then, since she knew that there is no chance for her to get the seat. By not choosing to challenge the same, petitioner has waived her right, if any available under law._ _9. On the basis of the Letter of Permission received from Medical Council of India for starting new PGSS Courses in DM Neurology, M.Ch.Neuro Surgery and M.Ch.Genito Urinary Surgery at Government Medical College, Alappuzha with two seats each in all the three specialities and on the basis of selection committee meeting of PGSS-2012 held on 28.07.2012. Government vide G.O.(Rt.) No.2535/12/H&FWD dated 30.07.2012 issued orders for allotment to the newly sanctioned seats. The meeting of PGSS selection committee held on 28.07.2012 discussed the matter in detail and decided to earmark PGSS seat for service quota_ ## **W.P(C).No.18359 of 2012** -:7:- _candidates on necessity basis and accordingly earmarked one seat each in DM Neurology and M.Ch.Genito Urinary Surgery at Government Medical College, Alappuzha to service quota candidates for admission to PGSS Courses – 2012._ _10. Thus, the total seats for D.M.Neurology with the addition of 2 seats on the basis of LOP became 9. Among this, and 5 seats were earmarked for general merit candidates and 4 seats for service quota candidates and thus the percentage for seats earmarked for DM Neurology for service quota candidates as per petitioner's argument became 44.44%. Already 3 seats were earmarked for service quota candidates out of 7 seats for DM Neurology prior to the additional seats allotted. If this 3 seats have to be retained for service quota candidates, out of 9 seats in D.M. Neurology, the percentage would come to 33.33% only. But since the Director of Health Services demanded for earmarking one seat each in D.M.Neurology and M.Ch.Genito Urinary Surgery for Health Services quota on necessity basis, in the selection committee meeting, one more seat in D.M.Neurology and M.Ch. Genito Urinary Surgery was earmarked for service quota. Even assuming though not accepting that the percentage has been exceeded 40%, it was exceeded only by 4.4% which is miniscule. However, if one seat had not been earmarked it comes only to 33.33% causing much loss to Government. As seats are unitary and cannot be fragmented, in good faith_ -:8:- ## **W.P(C).No.18359 of 2012** _and considering the fact that the Super Speciality Doctors under service quota will serve the public, Government has consciously made such a decision. All the seats in D.M.Neurology has been filled up in the Counselling held on 31.7.2012 and no seat is left vacant._ _11. It is worthwhile to mention that, out of the 97 seats in various specialities for admission to PGSS-2012, only 20 seats was earmarked for service quota candidates, the percentage comes to only 20.62%, which is far below the 40%.”_ 6. The Director of Medical Education has in paragraph 9 of the counter affidavit referred to the commencement of new course in DM Neurology and M.Ch. Genito Urinary Surgery in Government Medical College, Alappuzha pursuant to the letter of permission issued by the Medical Council of India for starting the said courses with two seats each. It is also stated that in the selection committee meeting held on 28.7.2012 a decision was taken to reserve seats in the service quota on necessity basis and accordingly one seat each in DM Neurology and in M.Ch. Genito Urinary Surgery, the courses newly sanctioned in the Government Medical College, Alappuzha were set apart for service quota candidates. In paragraph 4 of the counter affidavit it is stated that the Government had taken a conscious decision to earmark **W.P(C).No.18359 of 2012** -:9:- seats in DM Neurology for service quota having regard to dearth of qualified professionals in super speciality subjects, especially in Neurology, in the Public Health Sector. In paragraph 5 it is stated that the Government have taken a policy decision to start Cardiology, Nephrology and Neurology services at District Hospitals, that qualified service Doctors are required to meet the demands at the District Hospitals and therefore, the selection committee that met on 28.7.2012 decided to earmark seats for service quota candidates on necessity basis. In paragraphs 10 and 11 it is stated that out of 97 seats in the various specialities, only 20 seats are earmarked for service quota candidates, which is far below the maximum of 40% stipulated in section 5(1) of the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008. It is also stated that even under the prospects as originally issued before the DM Neurology course was sanctioned in Government Medical College, Alappuzha, 3 out of 7 seats had been reserved for service candidates, the percentage thereof worked out only to 33.33% and one more seat for DM Neurology in Government TD Medical College, Alappuzha was set apart for service quota on necessity basis pursuant to the decision of the selection committee that met on 28.7.2012. It is also ## **W.P(C).No.18359 of 2012** -:10:- stated that all the seats have been filled up in the counselling held on 31.7.2012 and no seat is lying vacant. 7. I heard Sri.K.U.Vijayan, learned counsel appearing for the petitioner, Sri.Roshen D.Alexander, learned Government Pleader appearing for respondents 1 to 4, Sri.P.Narayanan, learned counsel appearing for the 5[th] respondent and Sri.Manu Govind, learned counsel appearing for the 6[th] respondent. I also had the assistance of Sri.Alexander Thomas, learned counsel appearing for the Medical Council of India. Shorn of details, the contention raised by the petitioner is that section 5(1) of the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008 contemplates setting apart seats not exceeding forty percent of the total seats available to State quota in an academic year discipline-wise and not taking into account the total number of seats available in the various courses. Section 5(1) of the Act reads as follows:- _“5. Procedure for selection.- (1) The Government may set apart seats not exceeding forty percent of the total seats available to state quota in an academic year, for selection of Medical Officers under service quota considering their service and under the Government for admission to Post Graduate Medical Courses in_ **W.P(C).No.18359 of 2012** ## -:11:- _the Medical Colleges of the State in such manner as may be prescribed.”_ Section 5(1) enables the Government to set apart seats not exceeding 40% of the total seats available to state quota in an academic year for selection of Medical Officers under service quota considering their service under the Government for admission to Post Graduate Medical Courses in the Medical Colleges of the State in such manner as may be prescribed. It is not stated in express terms that total seats in each discipline may be set apart to the state quota. Considering the very same provision a Division Bench of this Court held in _**Vipin v. State of Kerala,**_ 2010 (4) KLT 380, that earmarking of the solitary seat in M.Ch. in Gastroenterology Surgery for service quota candidates cannot in any way be said to be illegal or arbitrary especially having regard to the fact that such earmarking was based on need. The Division Bench also held that no exception can be taken to the decision taken by the State Government to take all the seats together and to apply the quota of 40%. In the absence of any stipulation either in Ext.P2 prospectus or in the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008 to the effect that seats will be set apart ## **W.P(C).No.18359 of 2012** -:12:- in accordance with section 5(1) of the Act for each course and in view of the specific stipulation in section 5(1) of the Act that the Government may set apart seats not exceeding 40% of the “total seats available” to state quota in an academic year, I am not persuaded to accept the contention raised by the learned counsel for the petitioner that the seats have to be set apart applying section 5(1) of the Act course-wise and not taking into account the total number of seats available as held in _**Vipin v. State of Kerala,**_ 2010 (4) KLT 380. When Government have earmarked seats under section 5(1) of the Act having regard to the need felt by it, this Court cannot sit in appeal over the wisdom of the said decision of the Government, especially when section 5(1) of the Act does not postulate course-wise reservation. On the express terms of section 5(1) of the Act, I am of the considered opinion that the Government are entitled to take all the seats available for the purpose of applying the said provision. In the instant case, the only relief which the petitioner has prayed for is for an order directing respondents 1, 2 and 3 to allot a seat to the petitioner for DM Neurology, 2012. She has not challenged the validity of section 5(1) of the Act or the stipulations in Ext.P1 prospectus. All the seats were filled up on 31.7.2012 and the classes started ## **W.P(C).No.18359 of 2012** -:13:- on 1.10.2012. Therefore, for that reason also, I am of the opinion that no interference is called for. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. No costs. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P.(C).No.18359 of 2012 ----------------------------** ## **JUDGMENT** **19[th] December, 2012**