SAJIL.M.S. v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY** **WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933** **WP(C).No. 9638 of 2011(D)** **-------------------------------------** ## **PETITIONER:** - **-------------------** **SAJIL.M.S, AGED 27,S/O.SAJAN,TC 4/2239(6) KAIRALI NAGAR,KURAVANKONAM,KAUDIAR P.O, TRIVANDRUM.** **BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), SRI.A.R.DILEEP, SRI.V.SUNIL KUMAR (PANACHAMOODU).** ## **RESPONDENTS:** **------------------------** **1. STATE OF KERALA,REP.BY ITS SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT,GOVT. SECRETARIAT,THIRUVANANTHAPURAM-01.** **2. DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM,PIN- 695 011.** **3. COMMISSIONER OF ENTRANCE EXAMINATION, V FLOOR,HOUSING BOARD BUILDINGS, SANTHI NAGAR,THIRUVANANTHAPURAM-1.** **4. MEDICAL COUNCIL OF INDIA,REP.BY ITS SECRETARY,POCKET-14 SECTOR 8, DWARAKA,NEW DELHI-110 001.** **5. DR.BINU JOSE,(ASSISTANT SURGEON PHC,MARAYOOR,IDUKKI) ANU NIVAS, CHEMMAKKAD P.O,KOLLAM.PIN 691 603.** ## **W.P.(C). NO.9638/2011-D:** ## ***ADDITIONAL R.6 IMPLEAEDED:** **6. DR. NEETHU.K. KUMAR, “GOKULAM”, PAZHOOR.P.O., PIRAVOM, PRESENTLY WORKING AS ASSISTANT SURGEON, KOONAMMAVU, PRIMARY HEALTH CENTRE.** ## ***ADDL. R.6 IS IMPLEADED AS PER ORDER IN I.A. 6870/11 DATED 12/04/11.** ## ****ADDITIONAL R.7 IMPLEADED:** **7. DR. PREETHI LAKSHMI REGHUNATH, W/O. DR. SREEKANTH, RESIDING AT SREENIKETHAN, THATHAMPALLY, P.O. ALAPPUZHA.** ## ****ADDL. R.7 IS IMPLEADED AS PER ORDER IN I.A. 6845/11 DATED 12/04/11.** ## *****ADDITIONAL RESPONDENTS 8 TO 13 IMPLEADED:** **8. SANDHYA NAIR.K, GOPURAM, KUMARANELLUR.P.O., WADAKKANCHERY, THRISSUR DISTRICT – 680 590.** **9. DHANYA.O.T, SWAPNA, MEENANGADI.P.O., WAYANAD – 673 591.** **10. SUBAIR M.K, MANAKKALPADATH HOUSE, T.C. 16/634, BENNET ROAD, OLLUKARA.P.O., THRISSUR – 680 655.** **11. ANJU KRISHNA .S.A, ANJANA, NEAR RAILWAY STATION, KADAKKAVOOR.P.O., THIRUVANANTHAPURAM – 695 306.** **12. SAJEENA.A.S., SAJEENA MANZIL, KARIKKUZHY, PARAVOOR.P.O., NEDUMANGADU, THIRUVANANTHAPURAM – 695 568.** **13. FARZANA.T.C, BEEMAKKUTTY, MANZIL, B.P. ANGADI.P.O., TIRUR, MALAPPURAM – 676 102.** *****ADDITIONAL RESPONDENTS 8 TO 13 ARE IMPLEADED AS PER ORDER IN I.A. 6603/11 DATED 12/04/2011.** **R1 TO R3 BY GOVT. PLEADER SRI. K. SANTHOSH KUMAR, R4 BY ADV. SRI.ALEXANDER THOMAS, S.C, M.C.I, R5 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADDL. R6 BY ADV.SRI.NAVEEN.T, ADDL. R7 SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE, ADVS. SRI.S.MANU, SMT.K.DEEPA (PAYYANUR), ADVS.SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.A.R.NIMOD, SRI.C.A.ANOOP, SRI.P.S.APPU.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2011, ALONG WITH W.P.(C). NO. 9814/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.9638/2011-D:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS & ANNEXURES:** **EXT.P.1: COPY OF THE PROSPECTUS FOR MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSES, 2011 ISSUED BY THE R.2.** **EXT.P.2: COPY OF THE RELEVANT CLAUSE 9 OF MCI REGULATIONS, AS AMENDED, PERTAINS TO `SELECTION OF POST GRADUATE STUDENTS'.** **EXT.P.3: COPY OF THE KERALA ACT.** ## **EXT.P.4: COPY OF THE RANK LIST PUBLISHED BY THE R.3.** ## **EXT.P.5: COPY OF THE G.O.(RT).NO.648/2011/H&FWD DTD. 22/02/2011.** **EXT.P.6: COPY OF THE JUDGMENT DTD. 02/02/2011 IN W.P.(C).1974/2011 OF THIS HONOURABLE COURT.** **EXT.P.7: COPY OF THE ORDER DTD. 25/03/2010 IN W.P.(C).3608/10 AND CONNECTED CASES.** **EXT.P.8: COPY OF THE ANNEXURE TO GO(MS).NO.13/2010/H&FWD DTD. 14/01/2010.** **ANNEXURE- I: COPY OF THE GOVERNMENT ORDER NO.G.O.(MS).NO.13/2010/H&FWD DTD. 14/01/2010.** **ANNEXURE-II: COPY OF THE RESULT OF THE ENTRANCE EXAMINATION AFTER ADDING WEIGHTAGE AS PER EXT.P.5.** ## **RESPONDENTS' EXHIBITS:** ## **EXT.R5.A: COPY OF THE ORDER ISSUED BY THE R.1. DTD. 14/01/2010.** **EXT.R5.B: COPY OF THE RANK LIST DTD. 31/03/2011.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **Prv.** ## **C.R.** C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... W.P.(C) Nos.9638, 10794, 10602, 9839, and 9814 of 2011 .................................................................... Dated this the 25th day of May, 2011. ## JUDGMENT ## Ramachandran Nair, J. The writ petitioners in these connected W.P.(C)s. are medical graduates who participated in the Entrance examination conducted by the Commissioner for Entrance Examinations for admissions to Postgraduate Medical Degree/Diploma courses 2011 and have obtained high ranks making them eligible for admission to the courses applied for. The Entrance Examination was conducted on 9.2.2011 based on the prospectus issued on 4.1.2011. Rank list was also prepared on 14.2.2011 based on the marks obtained by the candidates in the Entrance examination. However, after preparation of the rank list, the Director of Medical Education issued an amendment to the prospectus on 22/02/2011 providing weightage marks to Government Medical Officers who participated in the Entrance Examination which is an addition at the rate of 10% of the marks obtained in the Entrance W.P.(C) 9638/2011 & conn. 2 Examination for every year of service in difficult rural areas subject to a maximum of 30%. As a result of the weightage marks given to Medical Officers, the petitioners who secured high ranks in the Entrance Examination conducted for admissions in the open merit quota went down in the list leaving no chance to them for admissions. For example, the candidate who secured rank No.1257 in the Entrance Examination, by virtue of the weightage of 30% marks eligible to him for the 3 years service rendered in difficult rural areas as provided in the amendment issued to the prospectus after preparation of the rank list, goes to rank No.24. Similarly another candidate who secured rank No.989 by virtue of two years' of service he had in difficult areas, goes to rank No.22. The weightage marks now granted to one section of candidates who participated in the Entrance Examination has therefore completely upset the rank list prepared based on the Entrance Examination thereby denying opportunity for admission to petitioners who but for the weightage marks given to some others based on the amendment to the prospectus later issued, would have got admissions. The petitioners have, therefore, filed these writ petitions challenging W.P.(C) 9638/2011 & conn. 3 the amendment made to the prospectus and the weightage marks given to certain candidates subsequent to the Entrance Examination and preparation of rank list. The learned Single Judge admitted the writ petitions and directed admissions to be given based on the original prospectus i.e. without awarding any weightage mark to certain candidates based on the amendment introduced to the prospectus after the examination and preparation of rank list. When writ appeals filed against interim orders came before us, we decided to hear the matter and dispose of the same finally. We have heard various counsel appearing for the petitioners, counsel appearing for the respondents, the Government Pleader and also Standing Counsel appearing for Medical Council of India. The annexures referred to in this judgment are those produced in W.P.(C) No.9638/2011. 2. Ext.P1 is the prospectus issued by the Director of Medical Education wherein it is stated that altogether 430 seats in P.G. Degree courses and 160 seats in Diploma courses are available for admission in the Government Medical Colleges in the State. 50% of the seats are reserved for allotment under the All India quota and, therefore, only W.P.(C) 9638/2011 & conn. 4 215 seats for P.G. Degree courses and 80 seats for P.G.Diploma courses are available for admission by the Directorate of Medical Education. Reservations are provided to various categories from out of the 50% available for admissions to be given by the Directorate. After providing 10% for SC and ST, 9% for OBC and 3% for physically handicapped, 40% of the remaining seats are reserved for inservice candidates i.e. for Medical Officers serving the Government Hospitals in the State. The balance of around 38%, i.e. 83 seats only are available for admissions to Post Graduate degree courses in the open merit quota for general candidates in the State. While the regulations of the Medical Council of India prescribe method for admissions to candidates from open merit quota which also provide guidelines on preferences and weightages to Medical Officers, the State has made a separate legislation called "The Kerala Medical Officers' Admission to Post-graduate Courses under Service Quota Act, 2008" which in Section 5 provides reservation to it's Medical Officers for admission to Post-graduate medical courses upto 40% of the seats available to the State. Section 6 of the said Act provides weightage marks for difficult W.P.(C) 9638/2011 & conn. 5 rural area service. However, the special statute made by the State providing quota for Medical Officers and weightage for service in difficult rural areas for admission to Post-graduate Medical courses does not provide for any Entrance Examination for their selection. A Division Bench of this court in MOHAMMED RIYAS VS. STATE OF KERALA reported in 2011(2) KLT 294 held that Government Medical Officers also have to undergo very same Entrance Examination for admission to Post-graduate medical courses. Even though this judgment was rendered with reference to admissions made in 2009 and 2010, the very same Division Bench of this court in W.P.(C) No.8786/2011 held that the above reported judgment applies for admissions to Post-graduate Medical courses commencing in 2011. The Supreme Court substantially confirmed this judgment with a rider that those service candidates who wrote the entrance examination conducted need not write the examination yet to be conducted for filling up the balance seats in service quota. By virtue of the above judgments, the Directorate of Medical Education and Commissioner of Entrance Examination are required to conduct another entrance W.P.(C) 9638/2011 & conn. 6 examination for Medical Officers for admissions to Post-graduate Medical courses in the quota reserved for them. So much so, the admissions to be given from the rank list prepared in the Entrance Examination conducted based on Ext.P1 prospectus has to be limited to the seats in the open merit quota including the candidates covered by other reservations. Both sides have clarified to us that out of the total 215 seats available for Post-graduate Degree courses, 67 seats are reserved for Medical Officers of the State for which examination has to be now separately conducted based on the judgments above referred and after setting apart the seats reserved for them and to other categories, the seats available in the open general merit quota are only 83. However, what requires special mention is that neither under the State Act providing for reservation for admissions to Medical Officers to Post-graduate Medical courses nor under Ext.P1 prospectus they were required or entitled to write the common Entrance Examination for admissions to the quota reserved for them. In fact, only few of the Medical Officers seeking admission for Post-graduate Medical courses participated in the common Entrance Examination conducted by the W.P.(C) 9638/2011 & conn. 7 Commissioner for admissions in the open merit quota. Ext.P1 also did not provide for any weightage marks to Medical Officers participating in the common Entrance Examination. However, one of the Medical Officers filed a representation to the Government to provide for weightage mark for difficult rural area service and when the Government did not consider the same, a writ petition was filed before this court and a learned Single Judge vide Ext.P6 judgment dated 2.2.2011 directed the Government to consider the representation to provide for weightage mark. Based on the representation, the Government issued Ext.P5 on 22.2.2011 providing grant of weightage mark to Medical Officers in the following lines: "Weightage will be given to candidates, who are in Government Service on regular basis and appearing for common Entrance Examination, who have done Government Service in Remote or Difficult Rural areas after the MBBS course as per PG Medical Education Regulation, 2009 Part III of Medical Council of India. Weightage shall be given as an incentive at the rate of 10% of the marks obtained in the Entrance Examination, for each year in service in Remote or Difficult Rural areas upto the maximum of 30% of the marks obtained." 3. As already stated, the above addition was made to the W.P.(C) 9638/2011 & conn. 8 prospectus only after conduct of examination based on Ext.P1 prospectus and after preparation of rank list. The weightage mark to which some of the Medical Officers who participated in the Entrance Examination are eligible, has completely upset the rank list prepared based on the Entrance examination. The first contention raised by the petitioners is that the prospectus cannot be subsequently amended to provide weightage mark to a category of candidates who participated in the Entrance Examination. Their further case is that the weightage mark applies only while considering admission in the seats reserved for Medical Officers and it cannot be granted to any candidate competing for admission in the general open merit quota to which the petitioners belong. The contention raised by respondents is that omissions in the prospectus could be made up through amendment that could be notified after conduct of the entrance examination and preparation of the rank list. On merit the respondents have contended that Regulations prescribed by the Medical Council of India apply for Post Graduate Medical admissions to all categories and the weightage marks provided under the amendment notification is in terms of the Medical Council W.P.(C) 9638/2011 & conn. 9 Regulations, and so much so, there is no scope for interference. The petitioners have questioned the rationality of weightage marks up to 30% provided to Medical Officers, and in support of their contentions they have relied on the decisions of the Supreme Court in **Dr.Dinesh Kumar and Others** v. **Motilal Nehru Medical College, Allahabad and Others,** reported in 1986(3) SCC 727 and in **Dr.Snehalata Patnaik and Others** v. **State of Orissa and Others** reported in 1992 (2) SCC 26. Learned counsel appearing for the respondents including the Government Pleader have relied on the decision of the Supreme Court in **State of M.P. and Others** v. **Gopal D.Tirthani and Others** , reported in 2003(7) SCC 83, and contended that preference through weightage marks in entrance examination for admission to Post Graduate courses is permissible for inservice candidates. The contention raised by the learned counsel appearing for the respondents including the learned Government Pleader and learned Standing Counsel for the MCI is that there is an omission in Ext.P1 prospectus in as much as the amendment made by the Medical Council of India on W.P.(C) 9638/2011 & conn. 10 17/11/2009 to the "Post Graduate Medical Education Regulations, 2000" which provides for weightage marks to inservice candidates, was not incorporated in the prospectus. The above amendment made by the Medical Council in the Post Graduate Medical Education Regulations, is as follows:- "Further provided that in determining the merit and the entrance test for postgraduate admission weightage in the marks may be given as an incentive at the rate of 10% of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30% of the marks obtained." It is seen from the amendment introduced to the prospectus by Ext.P5 extracted in paragraph 2 above that the same is nothing but copy of the above referred amended provisions of the MCI Regulations on Post Graduate admissions. Even though the learned counsel for the petitioners relying on the decisions of the Supreme Court above cited contended that weightage marks provided at 10% for each year of remote area service upto a maximum of 30% of the marks obtained in the entrance examination is arbitrary and excessive, we do not think there is any need for us to consider the same because of the view taken W.P.(C) 9638/2011 & conn. 11 by us as stated below. 4. It is settled position particularly by virtue of the judgment of the Supreme Court in the case of **Gopal D.Tirthani and other** cited above that weightage can be given to medical officers serving in rural areas for admission to Post Graduate medical courses. The Supreme Court has also held that common entrance test should be conducted for candidates seeking admissions in the open general / merit quota and also in the quota earmarked for medical officers. In this case, admittedly, the entrance examination conducted was not intended to cover medical officers for whom 67 seats are separately reserved. In fact, the need to conduct entrance examination for service candidates also has arisen only because of the above referred judgments of this Court and the Supreme Court. Therefore, what is seen is that a section of the medical officers also participated along with other candidates in the entrance examination for admissions in the open merit quota. So long as they are qualified medical graduates they are entitled to compete with other candidates for admission in the open merit quota, W.P.(C) 9638/2011 & conn. 12 no matter they are also entitled to be considered in the seats reserved for medical officers. The State Act above referred is exhaustive with regard to quota reservation for service candidates, entitlement for weightage marks for difficult / rural area service and all matters connected with Post Graduate admissions to be given to medical officers of the State. The petitioners also have not raised any objection against the reservation up to 40% Post Graduate seats for inservice candidates under Section 5 of the Act and the provision for weightage marks provided under Section 6 because the statutory provisions apply for selection of candidates from among medical officers of the State that too in the quota of seats reserved for them. Ext.P5 amendment to the prospectus in conformity with MCI Post Graduate Education Regulations is made in exercise of powers conferred under Section 6 of the State Act which apply for admissions to the seats reserved for service candidates under Section 5 of the Act. We are therefore of the view that in the examination conducted for admission in the open merit quota, the scheme of weightage marks to medical officers does not apply at all. In other words, the weightage marks provided in the above W.P.(C) 9638/2011 & conn. 13 stated amended provisions of the Post Graduate Medical Education Regulations of the MCI incorporated in the amended prospectus (Ext.P5) for difficult / rural area service apply only while considering admissions to the seats reserved for medical officers of the State. So much so the amendment made by Ext.P5 has no relevance or application while considering admissions of candidates seeking admissions in the open merit quota. Of course, the Medical Officers in the Government Service are also entitled to compete with other candidates for admission in the open merit quota but without claiming any weightage marks. Therefore weightage marks for difficult /rural area service cannot be awarded to medical officers seeking admissions in the open merit quota. However they can claim the benefit when they claim admissions in the seats reserved for them. As already stated, neither the MCI Post Graduate Education Regulations nor the State Act referred above provide for any weightage marks to medical officers when they compete with general candidates for admissions to the seats to be filled up from open merit quota. The petitioners have contended that after reserving 67 seats out of 215 in the Post Graduate degree W.P.(C) 9638/2011 & conn. 14 courses for admission to medical officers from Government Service if weightage is also given for rural / difficult area service to such of the candidates from Government service who participated in the entrance examination for admissions in the open merit quota, the same will work out virtually 100% reservation excluding admissions in the open merit quota altogether. We are in complete agreement with this contention because what is seen from the two illustrations above that by virtue of 10 to 30% marks added to the marks obtained by the medical officers, who wrote the entrance examination along with other candidates, they have gone above all candidates who secured high marks in the entrance examination. Neither the MCI Post Graduate Education Regulations nor the provisions of the Kerala statute visualise such a situation of completely excluding meritorious candidates seeking admissions in the open merit quota. We therefore hold that once reservation for admission to Post Graduate courses is provided to medical officers, the weightage for difficult /rural area service should be considered while evaluating interse merit of medical officers for admission. In other words, W.P.(C) 9638/2011 & conn. 15 medical officers seeking admission in the seats available in the open merit quota should be treated at par with general candidates. However, weightage marks could be granted to eligible candidates while considering admission for the seats exclusively reserved for medical officers. We make it clear that this observation of ours should not be taken as our approval for the unusual percentage of 10 to 30% weightage marks provided for difficult /rural area service to eligible candidates. We are told that Kerala has as many as 165 areas declared (difficult / rural area) and if weightage as provided in Ext.P5 is given, probably there is no chance for medical officers serving in urban areas to get admission. Therefore, it will be open to the inservice candidates to challenge the percentage of weightage marks if the same is arbitrary or unnecessary or works hardship for them. Leaving this open to them, we hold that the weightage marks has no application for admission to Post Graduate degree or diploma courses to the seats available in the open merit quota for which examination was conducted by Ext.P1 prospectus. We declare this position and direct the official respondents to give admission as per the original rank list, i.e. without awarding any W.P.(C) 9638/2011 & conn. 16 weightage marks to any of the candidates participated in the entrance examinations for admissions in the merit quota. These W.P.(C)s are allowed as above. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms/jg