MAYA MENON P. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 WP(C) NO. 22828 OF 2023** ## **PETITIONER:** DR. MAYA MENON P. AGED 46 YEARS W/O DR. MAYANK BHARTI , FLAT NO.9A, SAMRUDHI THAMPURAN, THAMPURANMUKKU P.O., VANCHIYOOR, THIRUVANANTHAPURAM, PIN – 695035 BY ADVS. A.K.PREETHA C.ANIL KUMAR RESHMA R.KRISHNAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001 2 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM, PIN – 695011 3 THE DIRECTOR OF HEALTH SERVICES DIRECTORATE OF HEALTH SERVICE, JAI VIHAR, PALAYAM, THIRUVANANTHAPURAM, KERALA, PIN – 695035 4 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 7TH FLOOR, KSRTC BUS TERMINAL COMPLEX, THIRUVANANTHAPURAM, PIN - 695001 BY ADVS. SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON 1.8.2023 DELIVERED THE FOLLOWING: WP(C).No.22828/2023 **2** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.22828 of 2023 ---------------------------------------------Dated this the 1st day of August, 2023** ## **JUDGMENT** Petitioner is working as Junior Consultant, Ophthalmology, Taluk Headquarters Hospital, Kayamkulam. The petitioner commenced service as Assistant Surgeon/junior Consultant on 19.06.2006 at Community Health Centre, Vizhinjam, Thiruvananthapuram and has worked primarily in rural stations like Community Health Centre, Vizhinjam, Primary Health Centre, Poonthura etc. Thus it is the case of the petitioner that sh e has 17 years of service under the 1[st] respondent. 2. The Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008 (for short, Act 2008) provides service quota seats for Medical WP(C).No.22828/2023 **3** Officers of the State of Kerala for admission to various Post graduate Courses in the Medical Colleges under Government. In pursuance to Act 2008, the 1[st ] respondent framed the Kerala Medical Officers’ Admission to Post Graduate Medical Courses under Service Quota Rules, 2009 (for short, Rules 2009). As per Rule 5 of Rules 2009, the upper age limit for the service quota will be 47 years for Post Graduate Degree courses and 48 years for Post Graduate Diploma courses as on the 30[th] day of April. The petitioner is now 46 years of age and fully qualified to apply for Post Graduation in Medicine under the service quota as per Rules 2009 is the submission. The 1[st] respondent published the prospectus for admission to the Medical Post Graduate Degree Courses in Government Medical Colleges in the State and RCC, Thiruvananthapuram for the academic session 2023-24. Ext.P1 produced in this writ petition is the relevant pages of the prospectus. Clause 4 of Ext.P1 prescribes the WP(C).No.22828/2023 **4** eligibility for admission which includes Academic (4.1), Nativity (4.2), Age (4.3) and Qualifying Criteria (4.4). As per Clause 4.3.3, for Health Service Quota Candidates, the upper age limit will be 47 years as on 31[st] December of the year of issue of notification of CEE by assuring the minimum of 10 years of service after completion of the course as stipulated in Rules 2009. Clause 6 provides for reservation of seats for service quota candidates. Clause 6.12 prescribed the Eligibility for Service Quota. As stated above, the petitioner is now 46 years of age and her date of birth is 27.12.1976 as evident from Ext.P2 SSLC Certificate. It is the case of the petitioner that even though she is fully qualified to apply for admission to Post Graduate Medical Course as per Rules 2009, the prescription of cut off date in Ext.P1 as “47 years as on 31[st] December of the year of issue of notification of CEE“ adversely affects the interests of the petitioner as she would cross 47 years as on 31.12.2023. The prescription WP(C).No.22828/2023 **5** of a prospective date for fixing cut off date in respect of admission to a Post Graduate Medical Course is arbitrary and illegal is the submission. Hence this writ petition is filed with following prayers: - “i) Declare Clause 4.3.3 of Exhibit P1 to the extent the same fixes 31.12.2023 as the date for fixing the upper age limit in respect of in service candidates as unconstitutional being violative of Article 14 of the Constitution of India - ii) Declare that Clause 4.3.3 of Exhibit P1 to the extent the same fixes 31.12.2023 as the date for fixing the upper age limit in respect of in service candidates is in conflict with Kerala Medical Officers’ Admission to Post Graduate Medical courses under Service Quota Rules, 2009, hence illegal - iii) a writ of mandamus or any other appropriate writ order or direction directing the respondents to permit the Petitioner to submit her application for admission to Admission to Medical Post Graduate Degree Courses 2023-24 reckoning her upper age limit as on 30.4.2023 - iv) dispense with the production of translation of Malayalam documents produced along with this Writ Petition and - v) be pleased to issue such other writ, order or WP(C).No.22828/2023 **6** direction as are deemed just and proper on the facts and circumstances of the case.” **==> picture [33 x 13] intentionally omitted <==** 3. Heard Adv.A.K.Preetha, the learned counsel for the petitioner and Adv.P.G.Pramod, the learned Government Pleader. 4. The counsel for the petitioner reiterated the contentions raised in this writ petition and submitted that Clause 4.3.3 of Ext.P1 so far as it fixes the upper age limit as “47 years as on 31[st] December of the year of issue of notification of CEE” is arbitrary and illegal. It is submitted by the counsel that the object of Act 2008 is to provide avenues for excellence in Government Medical Sector. It is also the case of the petitioner that Rules 2009 prescribes qualification other than academic qualification for selection under in-service quota and _inter alia_ prescribes a cut off age of 47 years as on 30[th ] day of April. It is also the case of the petitioner that fixation of said date has a nexus to the object sought to be achieved as WP(C).No.22828/2023 **7** admission procedure for the subsequent year commences with the publication of prospectus which in normal course commences in the month of May and admission procedure ends by 30[th] of September. It is the case of the petitioner that, she is duly qualified for submission of application for admission to Post graduate Medical Course as on 30.4.2023, which is the upper age limit prescribed in Rules 2009. But the counsel submitted that in Ext.P1 the cut-off date for determining the age of in-service candidates is fixed as 31.12.2023 and there is no rationale in fixing 31.12.2023 as the cut-off date for fixing age limit of the candidates and as such, the same is irrational and without adequate determining principle and hence arbitrary. It is also submitted that as far as the in-service candidates are concerned, their qualification for selection in the in-service quota is to be determined as per the Service Quota Act, 2008 and the Rules framed thereunder. Therefore it is WP(C).No.22828/2023 **8** submitted that Clause 4.3.3 of Ext.P1, to the extent the same fixes 31.12.2023 as the date for fixing the upper age limit in respect of in-service candidates is unconstitutional and violative of Article 14 of the Constitution of India. It is also submitted that Clause 4.3.3 of Ext.P1 to the extent it fixes 31.12.2023 as the date for fixing the upper age limit in respect of in-service candidates is in conflict with Rules 2009. Therefore the petitioner prays for declaration to that effect and for directing the respondents to permit the petitioner to submit her application for admission to Medical Post Graduate Degree Courses 2023-24 reckoning her upper age limit as on 30.4.2023. The counsel for the petitioner relied on several judgments of the Apex Court to support her contentions. 5. The Government Pleader seriously opposed the submission of the counsel for the petitioner. The WP(C).No.22828/2023 **9** Government Pleader took me through the statement filed on behalf of the 2[nd] respondent. The Government Pleader submitted that the upper age limit is fixed in such a way that on completion of the course, a minimum 10 years of Governmental service is ensured. It is submitted that giving maximum benefit to the public, is the purpose for which service quota has been introduced in the State of Kerala. Therefore it is submitted that the petitioner cannot contend that she has got an indefeasible right to get admitted under service quota. It is further submitted that the cut-off date is not a mere pick and choose but it is fixed based on some rational consideration and the petitioner cannot contend that it is illegal only for the reason that on fixation of cut-off date she becomes ineligible for admission under service quota. It is also submitted by the Government Pleader that the admission process will be completed along with the general PG admissions by December and the same is done as per the WP(C).No.22828/2023 **10** schedule issued by Medical Counselling Committee. It is further submitted that it is presumed that the counselling process will end by December 2023. The duration of the medical PG course is three years. Therefore it is submitted that the upper age limit is fixed as 47 years, so that on completing the course, the medical officer will get a minimum of 10 years in Government service. Therefore it is submitted that the aforesaid yardstick is adopted and it has got nexus with the object sought to be achieved and hence, there is no violation of Article 14 of the Constitution of India in fixation of cut-off date. The Government Pleader submitted that, as soon as a cut-off date is fixed, some persons will fall on the right side of the cut-off date and some persons will fall under wrong side of the cut-off date and that will not make the cut-off date _per se_ arbitrary. The Government Pleader also relied on the judgment of the Apex Court in **Ami Lal Bhat v. State of Rajasthan and Others [1997 (6) SCC 614].** WP(C).No.22828/2023 **11** 6. This Court considered the contentions of the petitioner and the Government Pleader. As evident from Ext.P2, the date of birth of the petitioner is 27.12.1976. If the cut-off date for fixing the upper age limit is 47 years as on 30[th] April 2023, the petitioner will be eligible to apply for service quota admission. But if the upper age limit is taken as on 31[st] December 2023, the petitioner cannot apply for service quota selection because she would be over 47 years as on the date. Therefore, the short point to be decided is whether the cut-off date prescribed in Ext.P1 prospectus is arbitrary and if there is any rational in fixing the cut-off date. The Act 2008 was passed by the Kerala State Legislative Assembly for enabling the service candidates to get admission for Post Graduate Medical Courses without having an entrance examination. Section 5(3) of Act 2008 says that the details of eligibility for admission, the duration of courses, allotment, fee to be paid, reservations of seats and such WP(C).No.22828/2023 **12** other details shall be published every year in the prospectus before the commencement of the admission. Rule 4(i) of Rules 2009 says that the selection of service candidates will be based on seniority in service. The total service will be reckoned as on the date of notification for inviting the application. Rule 5(ii) of Rules 2009 is also important, and hence Rule 5 is extracted hereunder. ## “5. **The qualification, other than academic qualification for selection** - (i) The candidates belonging to MES/HSD/IMS/ Municipal Service having minimum service as above are qualified to be selected for admission to the 40% of the total seats for PG degree/Super Speciality and Diploma set apart for them under service quota. (ii) The upper age limit will be 47 years for Post Graduate Degree courses and 48 years for Post Graduate Diploma course as on the 30[th] day of April. Suitable changes in the upper age limit may be made by the Government as per the terms included in the Prospectus for the courses, notified from time to time.” 7. As per Rule 5(ii), the upper age limit will be 47 years for post graduate degree courses and 48 years for post graduate diploma course as on the 30[th] day of April. WP(C).No.22828/2023 **13** But the last sentence of Rule 5(ii) clearly says that, suitable changes in the upper age limit may be made by the Government as per the terms included in the prospectus for the courses notified from time to time. Therefore, liberty is given to the Government for suitable changes in the upper age limit as per the terms included in the prospectus for the courses notified from time to time. It will be better to extract Clause 4.3.3 of Ext.P1 prospectus which is challenged in this writ petition: “4.3.3: For Health Service Quota and Insurance Medical Service Quota Candidates, the upper age limit will be 47 years as on 31st December of the year of issue of notification of CEE by assuring the minimum of 10 years of service after completion of the course as stipulated in the Service Quota Rules.” 8. From the above Clause in the prospectus itself, it is clear that the upper age limit is fixed as 47 years as on December of the year of issue of notification of CEE by assuring the minimum of ten WP(C).No.22828/2023 **14** years of service after completion of the course as stipulated in the Service Quota Rules. In other words, the upper age limit is fixed in such a way that, on completion of the course, a minimum of ten years of Governmental service is ensured. Though the petitioner challenges the fixation of cut-off date on the ground that it violates Article 14 of the Constitution of India, it is not clear how it violates Article 14 of the Constitution. A statement is filed by the 2[nd] respondent in this writ petition. It will be better to extract paragraph No.5 of the statement: “5. It is submitted that, as evident from the provision in the prospectus, which is impugned in the Writ Petition itself that the upper age limit is fixed in such a way that on completion of the course a minimum 10 years of governmental service is ensured. To give maximum benefit to the public is the purpose for which the service quota has been introduced in state of Kerala. The petitioner cannot contend that she has got an indefeasible right to get admitted under service quota. Here, in the given case, the cut-off date is not mere pick and choose but it is fixed WP(C).No.22828/2023 **15** based on some rational consideration as mentioned above. The petitioner cannot contend that it is illegal only for the reason that on fixation of cut-off date she becomes ineligible for admission under service quota. The admission process will be completed along with the general PG admissions by December and the same is done as per the schedule issued by Medical Counselling Committee. It is presumed that the counselling process will end by December 2023. The duration of the medical PG course is three years. The upper age limit is fixed as 47 years, so that on completing the course the medical officer will get a minimum of 10 years in government service. This is the yardstick adopted and it has got nexus with the object sought to be achieved. There is no violation of article 14 in the fixation of cut-off date.” 9. From the above paragraph, it is clear that there is indeed a purpose in fixing the cut-off date as 31[st] December. It is only to ensure that, on completion of the course, a minimum of ten years of Government service can be rendered by the candidates. That is clear from Clause 4.3.3 of Ext.P1 prospectus also. It is true that the petitioner will cross **16** WP(C).No.22828/2023 47 years if the cut-off date is prescribed as 31[st] December 2023. As on 31.12.2023, the petitioner’s age will be 47 years and 4 days. But, it is the natural consequence that some persons may fall on the right side of the cut-off date and some persons will fall on the wrong side of the cut-off date. That itself is not a reason to set aside a cut-off date prescribed in the prospectus. 10. The counsel appearing for the petitioner relied upon the judgment of the Apex Court in **Indian Railway Construction Co. Ltd. v. Ajay Kumar** [2003 (4) SCC 579], and took me through the relevant paragraphs which deals with the scope for judicial interference in matters of administrative decisions. But I am of the considered opinion that, fixing the cut-off date as 31[st] December in Clause 4.3.3 of Ext.P1 is not arbitrary or irrational and hence WP(C).No.22828/2023 **17** not against the dictum laid down in the above decision. There is a purpose behind fixing the cut-off date. The Government wants 10 years service from the candidates for service quota after the course. 11. Moreover, in **Hirandra Kumar v. High Court of Judicature at Allahabad and another** [2020 (17) SCC 401], the Apex Court considered the principles which govern the determination of cut-off date. It will be beneficial to extract paragraphs 21 and ## 22 of the above judgment. “21. The legal principles which govern the determination of a cut - off date are well settled. The power to fix a cut - off date or age - limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut - off or age - limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut - off which is prescribed, is arbitrary. In order to declare that a cut - off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational WP(C).No.22828/2023 **18** basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Art.14 of the Constitution. 12. It is a settled position that the 'State' is entitled to fix a cut-off date and such a decision can be struck down only when it is arbitrary and irrational. In **Hirandra Kumar** 's case (supra), the Apex Court observed that the validity of the Rule can not be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. It is also observed by the Apex Court that essentially, the determination of cut-off dates lies in the realm of policy. The Apex Court observed that a court in the exercise of the power of judicial review does not take over that function for itself. Similarly in **Ami Lal Bhat** 's case (supra), the Apex Court considered the fixing of cut-off date. The relevant portion of the above judgment is extracted hereunder: “4. Is such a cut off date fixed by the Rules applicable WP(C).No.22828/2023 **19** to the relevant service, arbitrary? It has been urged before us by the petitioners and / or appellants that the cut off date of 1st January following the last date fixed for receipt of applications is arbitrary. The cut off date should only be fixed with reference to the last date of making the application in question. It is submitted before us that the date of 1st of January has no nexus with the application in question and, therefore, must be struck down. 5. This contention in our view is not sustainable. In the first place the fixing of a cut off date for determining the maximum or minimum age prescribed for a post is not per se, arbitrary. Basically, the fixing of a cut off date for determining the maximum or minimum age required for a post, is in the discretion of the Rule making Authority or the employer as the case may be. One must accept that such a cut off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut off date is fixed there will be some persons who fall on the right side of the cut off date and some persons who will fall on the wrong side of the cut off date. That cannot make the cut off date per se arbitrary unless the cut off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. M/s. Parameshwaran Match Works, AIR 1974 SC 2349 and has been reiterated in subsequent cases……………….” WP(C).No.22828/2023 **20** 13. The counsel appearing for the petitioner also relied on the judgment of the learned Single Judge of this Court in W.P.(C)No.5654/2014. A reading of the above judgment would show that the learned Single Judge clearly stated in the concluding portion that no exception can be taken to the prescription of the upper age limit as 48 years for admission to the Degree courses and 49 years for admission to the Diploma courses in respect of personnel in the Health Services Department. The counsel relied on paragraph No.4 of the above judgment. But in paragraph No.4, it is clearly stated that rule however empowers the Government to relax the upper age limit in such a way that the minimum service available after completion of the course of study is not less than five years till the date of retirement. 14. A perusal of Rule 5(ii) of Rules 2009 also shows that suitable changes in the upper age limit can be made WP(C).No.22828/2023 **21** by the Government as per the terms included in the Prospectus for the courses, notified from time to time. The purpose of fixing the cut-off date, as per Clause 4.3.3 of Ext.P1, for the Health Service Quota and Insurance Medical Service Quota candidates with an upper age limit of 47 years as on 31[st] December of the year of issue of notification of CEE is to ensure a minimum of 10 years of service after completion of the course as stipulated in the Service Quota Rules. Three years is the period of the course and thereafter 10 years of service is necessary. That is why 31[st] December is fixed as the upper age limit. There is no irrationality or arbitrariness in fixing the cut-off date. I am of the considered opinion that, there is nothing to interfere with Ext.P1 prospectus by which 31[st] December 2023 is fixed as the date of reckoning the upper age limit of 47 years. Hence there is no merit in this writ petition. WP(C).No.22828/2023 **22** Accordingly, this writ petition is dismissed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV/das/nvj/DM WP(C).No.22828/2023 **23** ## **APPENDIX OF WP(C) 22828/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF PROSPECTUS PUBLISHED BY THE 1ST RESPONDENT VIDE G.O. (MS) NO. 112/ 2023/ H & FWD DATED, 10-05-2023 Exhibit 2 TRUE COPY OF THE S.S.L.C CERTIFICATE OF THE PETITIONER