Principal Secretary to Government, Health & Family Welfare Department, Secretariat, Thiruvananthapuram vs Saritha Nair S. and Dr. T.K. Madhu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE THE CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 19TH DAY OF NOVEMBER 2012/28TH KARTHIKA 1934** ## **WA.No. 1754 of 2012 ()** **----------------------------------------AGAINST THE ORDER/JUDGMENT IN WPC.NO.18478/2012 DATED 26-09-2012** **----------------------------** ## **APPELLANTS/RESPONDENTS 1 TO 3 IN WP(C):** **----------------------------------------------------------------------** **1. PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** **2. DIRECTOR OF MEDICAL EUDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 001** **3. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001** **BY GOVERNMENT PLEADER SMT.GIRIJA GOPAL** ## **RESPONDENT(S)/PETITIONER & 4TH RESPONDENT IN WP(C):** **-------------------------------------------------------------------------------------------** **1. SARITHA NAIR S., LAKSHMI , TC 3/2056,LIC LANE, PATTOM P.O.,THIRUVANANTHAPURAM-695 004** **2. DR.T.K.MADHU, C/O.DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,THIRUVANANTHAPURAM-695 001** **BY ADVS. SRI.M.RAJASEKHARAN NAYAR** **SMT.K.N.RAJANI** **SMT.ANILA PETER SRI.J.VIVEK GEORGE SRI..KOSHY GEORGE** **SRI.GEORGE POONTHOTTAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-11-2012, ALONG WITH WPC.NOS. 18478/2012, 18676/2012 AND WA.NO. 1762/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J.** *** * * * * * * * * * * * *** W.A.Nos.1754 & 1762 of 2012 and W.P.C.Nos.18476 & 18678 of 2012 ---------------------------------------Dated this the 19[th] day of November 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** The writ appeals arise out of a common interim order dated 26.09.2012 in the aforementioned writ petitions. The subject matter involved is relating to admission of candidates for D.M. Cardiology course in respect of academic year 2012-2013. When the writ appeals came up for hearing, the writ petitions were also posted together and with the consent of all parties concerned the writ petitions are also heard and disposed by this common judgment. 2. W.P.C.No.18476 of 2012 is taken as the leading case and the parties and exhibits referred are relating to the said case unless otherwise stated. 3. The 2[nd] respondent, the Directorate of Medical Education issued Ext. P1 prospectus in May, 2012 inviting applications for admission to post graduate super specialty courses 2012 in the Government Medical Colleges at W.A.No.1754/2012 & conn.cases 2 Thiruvananthapuram, Kottayam, Thrissur and Kozhikode. The notified vacancy for D.M. Cardiology was 18 and Ext.P1 prospectus further indicates that **“** If there is any increase in seat in any of the disciplines after the approval of prospectus, it would be considered at the time of admission” as per the G.O issued by Government. Medical Council of India (MCI) issued letter of permission dated 22.06.2012 to start two seats per year for the D.M.Cardiology in T.D Medical College, Alappuzha for the academic year 2012-2013 onwards. 4. Petitioners in the writ petitions (commonly referred as Petitioners) applied for admission and after the entrance examination they are also included in the rank list. Though counseling was conducted on 31.7.2012 only 18 candidates were advised of which 12 were from general category and three from service. Since only one candidate was available from the quota earmarked for medical education service, balance two seats were allotted in the service quota thereby filling up three seats for medical education service. No counseling was done in respect of the two seats at T.D.Medical College Allappuzha. According to them if the two seats are filled up, they will also get an W.A.No.1754/2012 & conn.cases 3 opportunity for obtaining the admission to the said course. The writ petitions were filed on 06/08/2012 and 7/8/2012 respectively. The last date of admission after counseling was 30/09/2012. 5. According to the petitioners, MCI had sanctioned two seats for the academic year 2012-2013 and no attempt was being made by the official respondents to fill up those seats and hence they filed the writ petitions inter alia seeking direction to select the candidates for the D.M. Cardiology course for the year 201213 strictly in accordance with the rank list, Ext P2 and Ext.P3 (in W.P.C.No.18678 of 2012). 6. The petitioner in W.P.C.No.18678 of 2012 has also contended that there was an attempt on the part of the official respondents to fill up the said two seats by regularising two out of four persons who were provisionally admitted during the academic year 2011-12, as per Government directions subject to approval of MCI. Hence W.P.C.No.18678 of 2012 is filed with an additional prayer to declare that the attempt to recognize the four persons including the 4[th] respondent as selected for the two seats is illegal. W.A.No.1754/2012 & conn.cases 4 7. Separate counter affidavits are filed by the 2[nd] respondent raising common contentions, inter alia stating that petitioners have no legal right to be considered against any of the seats duly sanctioned in the T.D.Medical college, Alappuzha and therefore the writ petition is not maintainable. It is also contended that the petitioners do not have a chance to get admission since in respect of the petitioner in W.P.C.No.18676 of 2012, there are 5 candidates above him and in respect of the petitioner in W.P.C.No.18478 of 2012 the last candidate in the general merit quota who took admission was Rank No.12 and the petitioner's rank is only 15. 8. As per the counter affidavit, regularisation of admission of four students admitted during the previous year has no relation to the admission to the current academic year. It is however stated that by virtue of Government Order dated 27/9/2011, provisional sanction was accorded for starting the course due to a special circumstance of indefinite delay in conducting the inspection of the Medical Council of India and the request of the rank holders of PG Super Specialty courses 2011. Out of the four seats so sanctioned, one seat was alloted to W.A.No.1754/2012 & conn.cases 5 service quota and three remaining seats to general merit quota and on that basis that four students were admitted to D.M cardiology at Government Medical College, Alappuzha during 2011-12. It is further stated that the said admissions were made in anticipation of sanction of MCI, but MCI has only sanctioned two out of four seats and that too prospectively for the academic year 2012-13. 9. It is the further contention of the 2[nd] respondent that the seats now allocated were not included in the prospectus for PG Super Specialty admission of 2012 and since the permission was granted only for two out of the four seats, Government have taken up the issue again with the Government of India and MCI for ex-post facto recognition to the four students admitted during the previous year by extending this year's recognition to the previous year. This, according to the Government, was necessitated taking into account the future of the four students admitted provisionally during the previous year anticipating sanction of MCI. It is further stated that there were only 19 seats in total for D.M. Cardiology admission of 2012-13 and in addition to the 18 seats mentioned in the prospectus one seat was W.A.No.1754/2012 & conn.cases 6 accommodated at Academy of Medical Sciences, Pariyaram. Therefore, according to the Government, all seats in the specialty have been filled up and no seats are hence vacant. 10. The petitioner in W.P.C.18676/2012 has filed a reply affidavit inter alia contending that in so far as the petitioner's name finds a place in the seniority list there is a possibility for getting admission if the seniors are not present for counseling. He has also produced Ext.P6 dated 22/6/2012 issued by MCI indicating the sanction of two seats by MCI in the T.D. Medical college, Alappuzha. Ext.P7 is the notification issued by the Director of Medical Education regarding the allotment of 4 seats in D.M.Cardiology at T.D. Medical college, Alappuzha in 2011, which indicates that the allotment will be strictly provisional and subject to the recognition of MCI. 11. The 3[rd] respondent MCI had filed an affidavit inter alia contending that the two additional seats were sanctioned only for the academic year 2012-13 as per Letter Of Intent dated 14/06/2012 at Ext.R3(a) wherein the Principal of the Medical College was called upon to send an acceptance of letter enabling the Board of Governors of MCI to issue letter of acceptance for W.A.No.1754/2012 & conn.cases 7 the academic year 2012-13. Ext.R3(b) is the letter of acceptance issued by the Principal and Ext.R3(c) is the sanction letter for starting the said course. 12. It was further contended that the Medical Council of India and the Central Government have no power to grant retrospective permission to start D.M. Cardiology course in that college with four seats from 2011 and retrospective permission is only for the limited class of cases covered under Section 10C of Indian Medical Council Act, 1956 (hereinafter referred as IMC Act), which is not applicable in the instant case since the permission granted under Section 10A of the IMC Act can have only prospective effect which is from the date of grant of such permission. Therefore, according to MCI, no arrangement can be made by the State Government in respect of students who were admitted without sanction of seats during the year 2011 and the two seats during the year 2012-13 has to be filled up from the rank list prepared after conducting the entrance examination for the current year. 13. The additional 4[th] respondent, who is one of the persons admitted provisionally in 2011 has filed a counter W.A.No.1754/2012 & conn.cases 8 affidavit and additional counter affidavit inter alia contending that the petitioners were not in the zone of consideration as their ranks were much below the last candidate selected. It is also contended that the matter is still under consideration of MCI and the Central Government and if these seats are filled their entire future will be affected. 14. The learned Single Judge, by an interim order dated 26/09/2012 directed the Director of Medical Education to admit two candidates in the two seats in D.M.Cardiology at T.D.Medical College, Alappuzha from the list published for Medical/Surgical P.G Super Specialty Course, 2012 after conducting necessary counseling on or before 30/09/2012. 15. The learned Advocate General while impugning the interim orders contended that in so far as the Government has not taken a decision to fill up the two seats, the Court cannot exercise the jurisdiction to direct those two seats to be filled up. Reliance is placed on Ext. P1 prospectus to indicate that applications are invited only for 18 seats which does not include any seat at Allapuzha and in the absence of any Government order the two seats now sanctioned cannot be filled up. It is also W.A.No.1754/2012 & conn.cases 9 contended that the Government has taken up the matter with the MCI and as per Ext.R4(d) dt.03/07/2012 a request was made to grant ex-post facto recognition to those students admitted during the previous year by extending this year's recognition to the previous year. The Advocate General also referred to a reply received from MCI as R4(c) which indicates that the Board of Governors had directed them to approach the affiliating university to forward a formal request under Section 11(2) of the IMC Act for recognition of the D.M. Cardiology qualification to the Central Government, Ministry of Health & F.W., and to send demand draft towards the prescribed fee for inspection of recognition. 16. On this basis, it is contended that the matter is still pending with the MCI and Central government and only if expost facto sanction is received it would be possible for the Government to allocate those two seats during 2011 and thereby at least two out of 4 persons can study for the super specialty course and they get an opportunity to continue their post graduate studies. Advocate General also relied upon the judgment in **Monika Ranka v. Medical Council of India** W.A.No.1754/2012 & conn.cases 10 [(2010) 10 SCC 233] wherein as a special case the Supreme Court has permitted the appellants who have completed the one year course to continue studies on equitable principles. 17. The learned Advocate General also submitted that since the time for admission is already over on 30/09/2012, petitioners are not entitled for any reliefs in the writ petition. 18. In fact when the above appeals came up for hearing on 28.09.2012 this court had stayed the operation of the interim order dated 26.09.2012 passed by the learned Single Judge. 19. During the course of hearing additional respondents 5 and 6 filed counter affidavit supporting the Government stand and refers to MCI's letter dated 6.08.2012, produced as Ext. R5 (c) as proof to indicate that MCI had requested the Government to address the Central Government through the affiliating University to make a request under section 11(2) of the IMC Act for recognition of DM(Cardiology). The additional respondents supported the stand taken by the Government and contended that any decision in this case should not affect their rights. 20. On the other hand, the learned counsel appearing for the petitioners in the above writ petitions, while supporting the W.A.No.1754/2012 & conn.cases 11 interim order passed on 26/09/2012 contended that when additional seats were sanctioned for the present academic year it is not open for the Government to adjust the said seats for an earlier period. They also contended that ex-post facto permission is not possible going by the provisions of the IMC Act as well as the judgments of the Supreme Court. They relied upon the following judgments supporting their contentions: i) **Vipin v State of Kerala (2010(4) KLT 380)** , wherein a Division Bench of this court held that it is the prospectus which controls the admission. ii) **Faiza Choudhary v. State of Jammu & Kashmir & Another [CDJ 2012 SC 598] (2012(4)KHC 4487 (SC)** is relied upon to contend that a medical seat has life only in the year it falls and that too till the cut off date and carry forward principle is unknown to professional colleges. iii) **Medical Council of India v. State of Karnataka [AIR 1998 Supreme Court 2423] (1998) 6 SCC 131)** is referred to indicate that admissions cannot be made exceeding the capacity fixed by MCI. W.A.No.1754/2012 & conn.cases 12 iv) **Priya Gupta v. State of Chattisgarh [(2012) 7 Supreme Court Cases 433]** in which the Supreme Court has held that the approval granted by MCI shall be operative only for the next academic year and once approval is granted before 15[th] July of the relevant year all seats shall be included in both the first and second counseling in accordance with the rules. v) **Asha v. PT.B.D.Sharma University of Health Sciences [(2012) 7 Supreme Court Cases 389]** courts could exercise its jurisdiction to admit candidates beyond the cut-off date in accordance with guidelines specified in **Priya Gupta** 's case (supra) vi) **Mridul Dhar v. Union of India [AIR 2005 Supreme Court Cases 666]** which holds the view that admission should not be in excess of the intake capacity. 21. The learned counsel for MCI while supporting the stand of the petitioners thereby indicating that the admissions ought to have been done in respect of academic year 2012-2013 for the two seats also contended that Ext. R4(c) letter of MCI was with reference to section 11(2) of IMC Act and not regarding permission under section 10A of IMC Act. The learned counsel W.A.No.1754/2012 & conn.cases 13 also relied upon the judgment of the Supreme Court in **K.S.Bhoir vs State of Maharashtra (2001) 10 SCC 264) and MCT vs Rama Medical College Hospital (2012) 8 SCC 80)** to narrate the distinction of between section 10A permission and recognition under section 11(2) of IMC Act. The judgment in **Civil Appeal No. 7749 of 2012** of the Supreme Court is relied upon to contend that retrospective recognition is not possible under the scheme for NCTE approval, and the said proposition is applicable in this case also. 22. The primary question to be considered is whether the petitioners have a legal right for an admission to the D.M. Cardiology course in respect of the two seats sanctioned by MCI. The petitioners were admittedly in the rank list at the time when counseling was done. At the time of counseling two seats have already been sanctioned by MCI and were available to be filled up. The petitioners rely upon the statement in the prospectus which indicates that if there is any increase in seat in any of the disciplines after the approval of prospectus, it would be considered at the time of admission. The contention of the respondent that in the absence of a Government order including W.A.No.1754/2012 & conn.cases 14 those two seats in the prospectus, allotment cannot be made is not sustainable. First of all, even according to the Government, one seat sanctioned for Pariyaram Medical College after the date of prospectus was filled up. That apart, a reading of the prospectus does not indicate that a further Government order is required. The reference of “as per the G.O issued by Government **”** can have only reference to the Government order dated 19.05.2012 referred in Ext. P1. Therefore we are of the view that admitting candidates to the said two seats cannot be termed as a deviation from the prospectus. 23. The contention of the learned Advocate General that counseling was not done in respect of the said two seats in T.D. Medical College anticipating ex-post-facto approval of the said two seats for the year 2011 is also not well founded. It is not in dispute that permission under section 10A of the IMC Act is given for seats only after conducting inspection in terms with provisions of the IMC Act and the Regulations framed thereunder. The application was submitted by the State Government for additional four seats for the previous year on 25.11.2010. Since the inspection fee was not paid, MCI W.A.No.1754/2012 & conn.cases 15 requested the Government to send the required fee by 05.01.2011 which was paid on 24.01.2011. According to MCI, by that time inspection could not be materialised for the academic year 2011-2012. Therefore it was not possible for MCI to have granted approval and the said application is considered only for the next academic year 2012-13. That apart, when MCI had clearly indicated in Ext.P6 that the two seats per year are with prospective effect, no other concession is possible as matters stand now. This is the view expressed by the Supreme Court in **Faiza Choudhary's** case (supra) and **Priya Gupta's** case (supra). In such circumstances, we are of the view that it was not possible for the Government to wait for an approval of the aforesaid two seats with effect from 2011-12 academic year and the said two seats ought to have been filled up this year itself. 24. In fact according to MCI, there is no power under any of the provisions of the IMC Act enabling IMC to grant ex-post facto approval for any seats. However while disposing these cases we are not intending to decide whether the Government can insist for an ex-post facto approval and we are not expressing any view on the rights of the four students who were W.A.No.1754/2012 & conn.cases 16 admitted in 2011. 25. Having found so, the next question is whether the petitioners are entitled for any relief. It is not disputed that they are also in the rank list and their entitlement will arise only if a counseling is conducted for the said two seats which is admittedly not conducted within the prescribed period. The counseling was not conducted within the prescribed period because of the interim stay granted by this court on 26/09/2012. An act of the court should not deprive a legitimate claim of eligible students for getting admission to a post graduate course. Whether the petitioners stand a chance to get admission will be known only after counseling which cannot be prejudged now. Therefore despite the fact that the stipulated time is over we are of the view that appropriate directions can be issued to do justice for eligible candidates. We are supported to take this view in the light of the Supreme Court judgment in **Asha v. PT.B.D.Sharma University of Health Sciences** (supra). Hence though it is a case where the period prescribed by MCI for admission is over on 30.9.2012, taking into consideration the fact that by virtue of the interim order the learned Single Judge W.A.No.1754/2012 & conn.cases 17 had already directed consideration of the petitioners for the said two seats and as directed the two seats were to be filled up prior to 30/09/2012, we are of the view that the 2[nd] respondent should conduct counseling for the said two seats for DM Cardiology in T.D. Medical College, Alappuzha and admit eligible candidates within a period of fifteen days and such admission shall be treated as valid and in accordance with the guidelines fixed by MCI. 26. Hence W.P.C.Nos.18476 & 18678 of 2012 are allowed. The 2[nd] respondent is directed to conduct counseling for the two seats for D.M. Cardiology at T.D. Medical College, Alappuzha and admit eligible candidates within a period of fifteen days and such admission shall be treated as valid and in accordance with the guidelines fixed by MCI. The writ appeals are dismissed. (sd/-) **(MANJULA CHELLUR, CHIEF JUSTICE)** (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr //True Copy// PA to Judge W.A.No.1754/2012 & conn.cases 18 W.A.No.1754/2012 & conn.cases 19 W.A.No.1754/2012 & conn.cases 20