Mahesh M.M., Jomon K. George & Dr. Gitanjali Natarajan v. The State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE S.MANU** **WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946** ## **WP(C) NO. 5143 OF 2017** ## **PETITIONERS:** - **1 MAHESH M.M AGED 34 YEARS, S/O.KARUNAN M.M., KARIPPALIYIL THAZHE KUNIYIL, KOORARA PO,CHAMPAD (VIA), KANNUR DISTRICT-670 694,WORKING AS CLINICAL PSYCHOLOGIST.** - **2 JOMON K.GEORGE AGED 32 YEARS, KALLAMPARAMBIL HOUSE,CHINGAVANAM PO, KOTTAYAM-686 531,WORKING AS CLINICAL PSYCHOLOGIST.** **3 DR.GITANJALI NATARAJAN ASSOCIATE PROFESSOR AND HEAD OF DEPARTMENT OF CLINICAL PSYCHOLOGY, AMRITA INSTITUTE OF MEDICAL SCIENCES, PONEKKARA, KOCHI, KERALA-682041, GENERAL SECRETARY, THE INDIAN ASSOCIATION OF CLINICAL PSYCHOLOGISTS-KERALA REGION,REGISTERED UNDER THE TRAVANCORE COCHIN LITERARY SCIENTIFIC SOCIETIES ACT, 12/1955, HAVING REGISTRATION NO.ER-199/10.** **BY ADVS. SRI.P.RAVEENDRAN PILLAI SMT.INDIRA RAVEENDRAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH, STATE SECRETARIAT,THIRUVANANTHAPURAM-695 001.** - **2 THE MALABAR CANCER CENTRE, REPRESENTED BY ITS DIRECTOR, PO MOOZHIKARA,THALASSERY, KANNUR.** - **3 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE CAMPUS, MEDICAL COLLEGE PO,** W.P.(C).No.5143 of 2017 2 ## **PIN-670 103, THIRUVANANTHAPURAM.** **4 THE REHABILITATION COUNCIL OF INDIA REPRESENTED BY ITS MEMBER SECRETARY, B-22, QUTAB INSTITUTIONAL AREA, NEW DELHI-695 031.** **5 JISHA ABRAHAM PSYCHO ONCOLOGIST CARITAS HOSPITAL, THELLAKOM PO, PIN-686 630.** **BY ADVS. SRI.P.ABDUL NISHAD SMT.KEERTHI SOLOMON, CGC SRI.C.V.ALEXANDER SMT.K.RADHAMANI AMMA SRI.BABU VARGHESE SR. SMT.KEERTHI SOLOMON CGC SRI.O.V.RADHAKRISHNAN SR. - FOR R2 GP- SRI.M.RAJEEV** ## **OTHER PRESENT:** **SRI TEK CHAND. SR GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.5143 of 2017 3 ## **[CR]** ## **S. MANU, J.** --------------------------------- W.P.(C)No.5143 of 2017 ---------------------------------Dated this the 31[st] day of July, 2024 ## **JUDGMENT** The 2[nd] respondent Malabar Cancer Centre (hereinafter referred to as 'the MCC') at Thalassery is an autonomous institution under the Government of Kerala. It is a registered society under the Societies Registration Act. The Centre invited applications for the post of Lecturers in different faculties by Ext.P1 notification dated 23.09.2016.The controversy in this case is regarding the recruitment to the post of Lecturer in Clinical Psychology. 2. The educational qualification mentioned in Ext.P1 notification for the post of Lecturer in Clinical Psychology is as follows:- ## “ **Qualification -** MSc/MA Clinical Psychology or MSc/MA in Psychology or Mphil in Clinical Psychology/Psycho-oncology/MPhil in Mental Health and Social Psychology.” W.P.(C).No.5143 of 2017 4 3. The requirement of experience mentioned in Ext.P1 for the post of Lecturer in Clinical Psychology is as follows:- **“Experience -** 3 years in Clinical Psychology/ Psycho-oncology in major hospital with 300 or more beds / major Cancer Centre. Candidates with PhD in Clinical Psychology/ Psycho-oncology or related areas in psychology will be preferred.” 4. The petitioners 1 and 2 applied for the post of Lecturer in Clinical Psychology in response to Ext.P1. They attended the interview held on 24.1.2017. Later, the MCC published rank list which is produced as Ext.P3. The 1[st] petitioner is the second rank holder in Ext.P3. The 1[st] rank holder has been arrayed as the 5[th] respondent in this writ petition. The petitioners approached this Court after publication of Ext.P3 rank list in this writ petition. Their grievance is that the 5[th] respondent does not have registration under the Rehabilitation Council of India established by the Central Act and therefore she was not eligible to be selected as Lecturer in Clinical Psychology. W.P.(C).No.5143 of 2017 5 Their submission is that, in view of the provisions of the Rehabilitation Council of India Act, 1992 (hereinafter referred to as 'the Act'), only those professionals who have got registration under the Council can practice as Clinical Psychologist and therefore selecting a person without registration as Lecturer in Clinical Psychology by the autonomous centre under the State Government is improper and illegal. They are seeking the following reliefs in the writ petition:- - “(1) Declare that the qualifications prescribed by the Rehabilitation Council of India for the post of Clinical Psychologist is mandatory and that the same is binding on the respondents. - (ii) Declare that the qualification of Clinical Psychologist as prescribed in Exhibit P1 Notification in not conformity with the qualification of Clinical Psychologists prescribed by the Rehabilitation Council of India and therefore the process of selection following Exhibit P2 notification is illegal and is liable to be struck down. W.P.(C).No.5143 of 2017 6 - (iii) Issue a writ of mandamus or appropriate writ, direction or order commanding the respondents to recast Exhibit P3 Rank List by incorporating therein only those candidates who have the qualifications prescribed by the Rehabilitation Council of India. - (iv) Issue such other further reliefs as the necessary in the interest of justice.” ## 5. This writ petition came up for admission on 15.2.2017. This Court passed the following order on that ## date:- “Admit. Govt. Pleader takes notice for R1 & R3. Issue notice to R2, R4 & R5. There shall be a stay of the appointment of the 5[th] respondent, in case she does not have registration with the Rehabilitation Council of India.” 6. Despite a specific order issued by this Court preventing the appointment of the 5[th] respondent in case W.P.(C).No.5143 of 2017 7 she does not have registration with the Rehabilitation Council of India, the MCC proceeded further and issued offer of appointment to the 5[th] respondent on 31.5.2017. The said offer of appointment has been produced by the 5[th] respondent as Ext.R5(d). It is relevant to note that the MCC mentioned the name of the post in Ext.R5(d) as “Lecturer in Clinical Psychology/Lecturer in Psycho-Oncology” in mentioning the subject of the letter. However, in the opening paragraph of the letter it has been stated that the offer of appointment is for the post of “Lecturer in Psycho Oncology”. In brackets it is stated that “re-designation is changed as per decision of executive committee meeting No:68, Item No.10”. The 5[th] respondent, according to her averments in the counter affidavit, joined service pursuant to the offer of appointment dated 31.5.2017 and is still continuing in service. 7. When the violation of the interim order was noted, interim order was issued on 14.06.2024 directing the Malabar Cancer Centre to explain the same through an W.P.(C).No.5143 of 2017 8 affidavit of its Director. The Director filed an affidavit on 19.07.2024. It is stated in the affidavit that the notice in the writ petition was received by the 2[nd] respondent only on 15.07.2017. It is also stated that copy of the interim order dated 15.02.2017 was not served on the 2[nd] respondent and therefore the order of stay was not within the knowledge of the authorities of MCC. The offer of appointment was issued to the 5[th] respondent on 31.05.2017 and she joined duty on 10.07.2017 before the receipt of the notice issued in this case. The Director further stated that there was no willful or deliberate action to defeat the purpose of the interim order and also that the 2[nd] respondent has got utmost respect to the Court. The petitioners have no case that they had served copy of the interim order on the Malabar Cancer Centre. Therefore, I find that initiation of proceedings for violation of the interim order is not required as no willful violation of the direction issued by this Court is involved. 8. The 2[nd] respondent has filed counter affidavit refuting the averments in the writ petition. The 5[th] W.P.(C).No.5143 of 2017 9 respondent has also filed counter affidavit. A statement has been filed by the counsel representing the 4[th] respondent. A reply affidavit has also been filed by the 2[nd] respondent. 9. I have heard the learned counsel appearing for the petitioners, learned Senior Counsel appearing for the MCC and also the learned counsel appearing for the 5[th] respondent. I have also perused the pleadings on record as well as the documents produced. 10. A preliminary contention has been raised by the learned Senior Counsel appearing for the 2[nd] respondent MCC. The learned Senior Counsel vehemently submitted that the petitioners 1 and 2 had taken part in the selection process without any dispute regarding Ext.P1 notification. The 1[st] petitioner was placed in the second rank and the 2[nd] petitioner did not find any place in the ranked list. Relying on the judgment in **Sarojakumari v. Helen Thilakom** [2017 (4) KLT 570 (SC)] the learned Senior Counsel submitted that the petitioners 1 and 2 are not entitled to raise a challenge against the selection process or the terms W.P.(C).No.5143 of 2017 10 of the recruitment notification. The contention is that principles of estoppel would dis-entitle the petitioners 1 and 2 from maintaining the writ petition. The learned Senior Counsel also submitted that the 3[rd] petitioner has joined the litigation claiming that she is the General Secretary of an association of Clinical Psychologists. The 3[rd] petitioner, who is not a candidate in the selection process, cannot raise a challenge about the process. Even in her capacity as an office bearer of an association she is not entitled to raise a challenge as it is well settled that challenges in the nature of public interest litigation at the instance of third parties are not liable to be entertained in service law. He, therefore, pleaded that the writ petition is liable to be dismissed as not maintainable and entering into the merits in a case not properly instituted will be improper. 11. On the other hand, the learned counsel appearing for the petitioners submitted that the basic contention of the petitioners is regarding violations of the mandatory requirements under the Rehabilitation Council of India Act. W.P.(C).No.5143 of 2017 11 She points out that the MCC has ignored the requirements under the Central Act while conducting a selection process and therefore the petitioners are calling in question the illegality involved in the process. She relied on the judgments of a Division Bench of this Court in 1) **Razia. K.I. (Dr.) v. University of Kerala, Thiruvananthapuram** **& others** [2022 (2) KLT 412], 2) **Dr. Smitha Chacko v. State of Kerala & Others** [2022 (5) KLT OnLine 1066] 3) **Athul Antony A. v. High Court of Kerala** [2024 KHC OnLine 151]. Relying on the judgment in **Razia's** case (supra) the learned counsel argued that illegality committed in the process of selection can be a ground to challenge the selection process and the mere fact that a candidate raised the challenge after participating in the selection process is not a ground to reject the challenge under such circumstances. 12. The writ petition is filed mainly on the ground that the MCC selected the 5[th] respondent for the post of Lecturer in Clinical Psychology without following the mandatory W.P.(C).No.5143 of 2017 12 requirement under the Rehabilitation Council of India Act, 1992. The petitioners are specifically referring to various provisions of the Act and pointing out that the 5[th] respondent is not having registration under the Rehabilitation Council. In other words, the basic contention is regarding violation of the provisions of the Central Act. Therefore, nature of challenge raised is regarding alleged illegality in the selection process conducted by the MCC. Hence, I find that the petitioners 1 and 2 cannot be nonsuited for the sole reason that they had taken part in the selection process. I refer to the following observations of the Hon'ble Supreme Court in **Dr.(Major) Meeta Sahai v. State of Bihar & Others** [2019 (20) SCC 17] in this connection- “15.Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a W.P.(C).No.5143 of 2017 13 catena of decisions of this Court to substantiate his objection. 16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v.State of Bihar[Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , observing as follows: ''16. We also agree with the High Court [Manish Kumar Shahi v.State of Bihar, 2008 SCC On Line Pat 321 : (2008) 4 PLJR 93] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance. W.P.(C).No.5143 of 2017 14 17.However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process. 18.The question of permissibility of giving weightage for “work experience” in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions. 19.The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to W.P.(C).No.5143 of 2017 15 only against the respondents' interpretation of “work experience” as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of the appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not.'' _( Emphasis added )_ ## 13. In **Abhimeet Singh and Ors. v. High Court of** **Judicature at Patna and Ors.** [2024 SCC OnLine SC 795], the Apex Court has held thus, relying on the judgment in **Meeta Sahai** :- _“18. At the outset, it is apposite to address the issue of the maintainability of the writ petitions. It is argued by Mr. Gautam Narayan and Mr. Purvish Jitendra Malkan learned counsel that after having participated in the recruitment process, the writ petitioners having not succeeded, cannot turn around and challenge the recruitment process or the vires of the Recruitment Rules. It is submitted that all candidates knew about the prescription of minimum marks for viva voce, well before the selection process commenced and the principle of estoppel will operate against the unsuccessful challengers. On the other hand, the learned counsel representing the writ petitioners argued that the principle of estoppel would have no application when there are glaring illegalities in the_ W.P.(C).No.5143 of 2017 16 _selection process. Further, estoppel is not applicable when the arbitrariness affects fundamental rights under Articles 14 and 16 of the Constitution of India_ 3 _._ _19. As argued by the learned counsel for the High Courts, the legal position is that after participating in the recruitment process, the unsuccessful candidates cannot turn around and challenge the recruitment process. However, it is also settled that the principle of estoppel cannot override the law. Such legal principle was reiterated by the Supreme Court in Dr. (Major) Meeta Sahai v.Union of India where it was observed as under:_ _“17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.''_ However, I find considerable force in the argument of the learned Senior Counsel regarding the locus of the 3[rd] petitioner. She claims to be an office-bearer of a registered association. However, she being not a participant in the selection process, is not entitled to maintain a challenge W.P.(C).No.5143 of 2017 17 against the selection of the 5[th] respondent in the recruitment process pursuant to Ext.P1. Nevertheless, as the petitioners 1 and 2 had participated in the selection process the writ petition cannot be rejected. 14. The Rehabilitation Council of India Act, 1992 was enacted with the purpose of regulating and monitoring training of rehabilitation professionals and personnel, promoting research in Rehabilitation and Special Education, the maintenance of a Central Rehabilitation Register and for matters connected therewith or incidental thereto as stated in the Act itself. Section 2(1)(n) defines 'Rehabilitation Professionals'. The definition is extracted below for ready reference:- “(n) "rehabilitation professionals" means- - (i) audiologists and speech therapists; - (ii) clinical psychologists; - (iii) hearing aid and ear mould technicians; - (iv) rehabilitation engineers and technicians: - (v) special teachers for educating and training the handicapped; (vi) vocational counselors, employment officers and placement officers dealing with handicapped, W.P.(C).No.5143 of 2017 18 (vii) multi-purpose rehabilitation therapists, technicians, or (viii) such other category of professionals as the Central Government may, in consultation with the Council, notify from time to time.” 15. Therefore, Clinical Psychologist is undoubtedly a ‘Rehabilitation Professional’ under the Act. Chapter-III of the Act deals with the functions of the Rehabilitation Council. Section 11 in Chapter-III is regarding recognition of qualifications granted by University, etc. in India for rehabilitation professionals. Section 12 is regarding recognition of qualifications granted by institutions outside India. Section 13 is about rights of persons possessing qualifications included in the schedule to be enrolled. As the issue involved in this writ petition mainly revolves around the provisions of Section 13(2), the same is extracted for ready reference:- ## “13. **Rights of persons possessing qualifications included in the Schedule to be enrolled.** (1) xxx xxx xxx W.P.(C).No.5143 of 2017 19 (2) No person, other than the rehabilitation professional who possesses a recognised rehabilitation qualification and is enrolled on the Register.- (a) shall hold office as rehabilitation professional or any such office (by whatever designation called) in Government or in any institution maintained by a local or other authority, (b) shall practice as rehabilitation professional anywhere in India, (c) shall be entitled to sign or authenticate any certificate required by any law to be signed or authenticated by a rehabilitation professional, (d) shall be entitled to give any evidence in any court as an expert under section 45 of the Indian Evidence Act, 1872 (1 of 1872) on any matter relating to the handicapped: Provided that if a person possesses the recognised rehabilitation professional qualifications on the date of commencement of this Act, he shall be deemed to be an enrolled rehabilitation professional for a period of six months from such commencement, and if he has made an application for enrollment on the Register within said period of six months, till such application is disposed of. [(2A) Notwithstanding anything contained in sub-section (2), any person being a doctor or a paramedic in the field of physical medicine and rehabilitation, orthopaedics, ear, nose or throat (ENT), ophthalmology W.P.(C).No.5143 of 2017 20 or psychiatry, employed or working in any hospital or establishment owned or controlled by the Central Government or a State Government or any other body funded by the Central or a State Government and notified by the Central Government, may discharge the functions referred to in clauses (a) to (d) of that subsection.] (3) xxx xxx xxx.” 16. Impact of sub-section (2) of Section 13 is that for the purposes mentioned in clauses (a) to (d) of sub-section (2) only persons who possess recognized rehabilitation qualification and enrolled on the register of the Council shall be eligible. In view of clause (b) of sub-section (2), no one who does not possess a recognized rehabilitation qualification can practice as a rehabilitation professional anywhere in India. The other requirement under the provision is that such professional who possess a recognized rehabilitation qualification must have enrolled on the register of the Rehabilitation Council. Hence, the mandate of Section 13 of the Act regarding practice as a Rehabilitation professional anywhere in India are two-fold: W.P.(C).No.5143 of 2017 21 - 1) The person must possess a recognized rehabilitation qualification; - 2) He or she should have enrolled in the register of the Rehabilitation Council. ## 17. The World Health Organisation (WHO) narrates some key facts about rehabilitation as follows:- • Rehabilitation is an essential part of universal health coverage along with promotion of good health, prevention of disease, treatment and palliative care. • Rehabilitation helps a child, adult or older person to be as independent as possible in everyday activities and enables participation in education, work, recreation and meaningful life roles such as taking care of family. • Globally, an estimated 2.4 billion people are currently living with a health condition that may benefit from rehabilitation. • The need for rehabilitation worldwide is predicted to increase due to changes in the health and characteristics of the population. For example, people are living longer, but with more chronic disease and disability. W.P.(C).No.5143 of 2017 22 • Currently, the need for rehabilitation is largely unmet. In some low and middle-income countries, more than 50% of people do not receive the rehabilitation services they require. Emergencies including conflicts, disasters and outbreaks create enormous surges in rehabilitation needs while also disrupting rehabilitation services. • Rehabilitation is an important part of universal health coverage and is a key strategy for achieving Sustainable Development Goal 3 - "Ensure healthy lives and promote well-being for all at all ages". Therefore, the role of rehabilitation professionals in the society is of great importance. Purpose, generally, of bringing out legislations to control various fields of professionals is to ensure that only those who have acquired recognized qualifications are entering the field and that they follow professional ethics and maintain a sense of responsibility. The essential purpose of all such legislations is to ensure that the concerned professionals serve the society with efficacy, maintaining quality and accountability. Hence, it is necessary that every authority employing W.P.(C).No.5143 of 2017 23 professionals shall follow and ensure compliance with the requirements of the law governing the particular field in larger public interest. Rehabilitation Council of India Act is also such a piece of legislation which has to be followed by all concerned. 18. The precise case of the petitioners is that the post notified for appointment vide Ext.P1 is ‘Lecturer in Clinical Psychology’. In view of Section 2(1)(n)(ii), Clinical Psychologists are rehabilitation professionals under the Act. Therefore, to practice as a Clinical Psychologist the professional must satisfy the requirement of Section 13(2). Hence, they contended that the 5[th] respondent, who admittedly has no registration under the Rehabilitation Council, does not satisfy the second requirement under Section 13(2). She, therefore, being ineligible to practice as a Clinical Psychologist is not eligible also to get appointment as Lecturer in Clinical Psychology. 19. The learned Senior Counsel for the 2[nd] respondent MCC as well as the learned counsel appearing for the 5[th] W.P.(C).No.5143 of 2017 24 respondent pointed out that Ext.P1 notification does not mention registration under the Rehabilitation Council as a qualification. They argued further that a selection process is initiated in public domain by issuing the recruitment notification and the terms of the recruitment notification shall govern aspects like eligibility, the method of selection, etc. The learned Senior Counsel also submitted that the post notified is of a “Lecturer in Clinical Psychology” and not “Clinical Psychologist”. Therefore, he submitted that the mandatory provisions of the Rehabilitation Council of India Act has no application to the selection in question. 20. The prohibition imposed by Section 13(2) is specifically for four different aspects:- - 1) In holding office as a rehabilitation professional in Government or in any institution maintained by a local or other authority. - 2) In practicing as a rehabilitation professional anywhere in India. W.P.(C).No.5143 of 2017 25 - 3) In signing or authenticating any certificate required by any law to be signed or authenticated by a rehabilitation professional. - 4) To give any evidence in a court as an expert under Section 45 of the Indian Evidence Act on any matter relating to the handicapped. On a cursory look it may appear that the provisions of Section 13 may not have any application to the recruitment process involved in this case. Being a Lecturer in Clinical Psychology is not an activity directly covered by the provisions of Section 13(2). Also it can be argued that a Lecturer in Clinical Psychology is not specifically mentioned in the definition of 'rehabilitation professionals'. However, it is to be noted that Ext.P1 notification specifically mentions about the experience required for the post. The same has already been extracted in paragraph No.3 above. The candidate should have worked for three years in clinical psychology/psycho-oncology in a major hospital with 300 or more beds or in a major cancer centre. Hence, the W.P.(C).No.5143 of 2017 26 experience criteria mentions three years experience as a clinical psychologist in a major hospital. The alternative is three years experience as a Psycho-Oncologist. To practice as a clinical psychologist in a hospital the professional should satisfy twin requirement under Section 13(2) as discussed above. The possession of a recognized rehabilitation qualification alone would not suffice; enrollment in the register of the rehabilitation council is also mandatory. Hence the experience criteria mentioned in the notification essentially implies registration, which is a mandatory requirement under the Central Act, if experience as Clinical Psychologist is claimed. 21. The 5[th] respondent who is admittedly not registered with the Rehabilitation Council is therefore not eligible to practice as a Clinical Psychologist. It is also doubtful whether the experience acquired by her and claimed at the time of submitting application can be legally considered as valid for this reason. However, no challenge has been raised by the petitioner on this ground and hence W.P.(C).No.5143 of 2017 27 the issue need not be examined by this Court. 22. The 5[th] respondent filed counter affidavit. She produced minutes of the 68[th] Executive Committee Meeting of MCC held on 25.04.2017. As agenda item No.10 the Committee discussed about renaming of the post of Lecturer in Clinical Psychology as Lecturer-Psycho-Oncology. The said discussion was necessitated in view of a complaint received from Indian Association of Clinical Psychologists. The proceedings reveals that the MCC sought opinion from faculty in Cancer Institute, Adayar, Chennai and received reply that for Psycho-Oncologist, registration under the Rehabilitation Council is not necessary. It was decided in the meeting to change the name of the post as ‘PsychoOncologist’ in view of the advise received from Cancer Institute. In support of the said decision the Executive Committee stated that the actual requirement was of Psycho-Oncologist and therefore the 5[th] respondent being the 1[st] rank holder and qualified in Psycho-Oncology can be appointed. Legality of such a decision taken, after W.P.(C).No.5143 of 2017 28 conclusion of the selection process for the post notified as Clinical Psychologist is also highly doubtful. However, it is to be noted that the petitioners have not challenged the decision of the Executive Committee or the offer of appointment issued to the 5[th] respondent, by amending the writ petition. Hence, it may not be proper for this Court to examine the said issue also. Since the appointment of the 5[th] respondent is as Psycho-Oncologist, which is not a category covered under the definition of rehabilitation professional, the same cannot be interfered with in this writ petition on account of lack of proper pleadings on the part of the petitioners. 23. Hence, no relief can be granted in this writ petition. However the manner in which the MCC proceeded with the selection process without noticing the requirement of registration under the Central Act and concluded it by changing the nomenclature of the post is liable to be deprecated. MCC would be violating the provisions of the Central Act, if it permits or deploys the 5[th] respondent to W.P.(C).No.5143 of 2017 29 discharge duties as a Clinical Psychologist any time. 24. I also observe that the Rehabilitation Council shall consider seriously the non inclusion of professionals like ‘Psycho Oncologists’ within the purview of the Act, who are also discharging duties similar to that of Clinical Psychologists. In order to ensure that the relevance of the Act is preserved and purpose is achieved in the present times also, appropriate notifications or amendments to include more categories under the definition of ‘Rehabilitation Professional’ may be essential. The Council may consider the same, noticing the manner in which the provisions of the Act were bypassed by the MCC in this case. Registry shall forward a copy of this judgment to the Member Secretary of the 4[th] respondent. Writ petition is dismissed with the above observations. Sd/- **S.MANU, JUDGE** skj W.P.(C).No.5143 of 2017 30 ## **APPENDIX OF WP(C) 5143/2017** ## **PETITIONERS' EXHIBITS** **P1 : TRUE COPY OF THE NOTIFICATION INVITING APPLICATIONS FOR THE POST OF LECTURER IN CLINICAL PSYCHOLOGY IN MALABAR CANCER CENTRE DATED 23-9-2016.** - **P2 : TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER NO.1.** **P3 : TRUE COPY OF RANK LIST PREPARED BY THE MALABAR CANCER CENTRE FOR CLINICAL PSYCHOLOGISTS.** **P4 : TRUE COPY OF THE GUIDELINES AND SYLLABUS FRAMED BY THE REHABILITATION COUNCIL OF INDIA.** **P5 : TRUE COPY OF THE COMMUNICATION ISSUED BY THE REHABILITATION COUNCIL OF INDIA TO THE STATE SECRETARY DATED 9-4-2013.** **P6 : TRUE COPY OF THE COMMUNICATION ISSUED THE REHABILITATION COUNCIL OF INDIA TO THE SECRETARY, DEPARTMENT OF DISABILITY AFFAIRS DATED 24-1-2013.** **P7 : TRUE COPY OF THE COUNTER AFFIDAVIT IN OA NO.2617/2016 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **P8 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER BEFORE THE 3RD RESPONDENT DATED 26-1-2017.** **P9 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER DATED 31-1-2017** **P10 :** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER DATED 27-1-2017.**