State of Kerala represented by Secretary to Government, Department of Health and Family Welfare Secretariat, Thiruvananthapuram, and others v. Dr. Anitha Gopinathan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943** **WA NO. 1466 OF 2021** **AGAINST THE ORDER DATED 27.10.2021 IN WP(C) 21489/2021 OF HIGH COURT** **OF KERALA, ERNAKULAM** ## **APPELLANTS/RESPONDENTS 1 TO 4 IN THE WRIT PETITION:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVAANANTHAPURAM-695 001.** - **3 COMMISSIONER OF ENTRANCE EXAMINATION 5TH FLOOR, KSHB BUILDING, SS KOVIL ROAD, SANTHI NAGAR, THIRUVANANTHAPURAM,KERALA-695 001.** - **4 DIRECTOR MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., MEDICAL COLLEGE , KUMARAPURAM ROAD, CHALAKKUZHI, THIRUVANANTHAPURAM, KERALA-695 001. BY ADVS. SRI.K.GOPALAKRISHNA KURUP, ADVOCATE GENERAL SHRI.V.MANU, SENIOR GOVERNMENT PLEADER SHRI.T.B.HOOD, SPL.G.P. TO A.G.** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 5 TO 10 IN THE WRIT PETITION:** - **1 DR.ANITHA GOPINATHAN AGED 39 YEARS** - **W/O. RENJITH RAJAN, ASSISTANT DENTAL SURGEON, DISTRICT HOSPITAL, CHENGANNUR, ALAPPUZHA-689 121, RESIDING AT ANASWARA, PRAYAR NORTH, PRAYAR P.O., ALAPPUZHA-690 547** - **2 DENTAL COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, DENTAL COUNCIL OF INDIA, AIWAN-E-GALIB MARG, KOTLA ROAD, TEMPLE LANE, OPP. MATA** W.A.No.1466/2021 2 **SUNDARI, COLLEGE FOR WOMEN, NEW DELHI-110 002.** - **3 NATIONA MEDICAL COMMISSION REPRESENTED BY ITS SECRETARY, PHASE-I, DADA DEV MANDIR ROAD, BLOCK P SECTOR 8 DWARAKA, DWARAKA, NEW DELHI, DELHI-110 077.** - **4 DR. BABU E. C. ASSISTANT DENTAL SURGEON, TALUK HOSPITAL, CHELAKKARA, THRISSUR - 680 586.** - **5 DR. RAFI A. N. ASSISTANT DENTAL SURGEON, CHC KESAVAPURAM, KILIMANOOR, VELLALLOOR - 695 601.** - **6 DR. RAJANI E. R. ASSISTANT DENTAL SURGEON, GENERAL HOSPITAL, CHANGANASSERY, NEAR KSRTC, GOVERNMENT HOSPITAL ROAD, CHANGANASSERY, KOTTAYAM, KERALA - 686 101.** - **7 DR. ABDURASHEED EDAKKOD MATHAMKUTH ASSISTANT DENTAL SURGEON, CHC AREACODE, MALAPPURAM - 673 639.** **BY ADVS.** **SRI.KALEESWARAM RAJ FOR R1** - **SRI.M.P.PRAKASH, STANDING COUNSEL FOR R2 SRI.TITUS MANI STANDING COUNSEL FOR R3 SRI.P.K.MANOJKUMAR FOR R4, R6 & R7 SRI.T.B.HOOD, SPECIAL GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1466/2021 3 ## **JUDGMENT** Dated this the 9[th] day of November, 2021 ## **S. MANIKUMAR, CJ.** Before the writ court, Dr. Anitha Gopinathan, Assistant Surgeon, District Hospital, Chengannur, Alappuzha - respondent No.1/writ petitioner, sought for the following reliefs: - i. To issue a writ of certiorari quashing clause 11.7 of Exhibit P6 Prospectus to the extent to which it says that inter-se seniority of physical service will be the criteria for selection and that is the basis on which rank list will be prepared. - ii. To issue a writ of certiorari quashing Exhibits P12 and P13 if and to the extent to which it relates to candidates included in service quota; - iii. To issue a writ of mandamus directing the respondent no.3 to publish the provisional allotment list for admission to the NEET MDS Course 2021 in the service quota based strictly in accordance with the merit of the candidates i.e the rank obtained in the NEET MDS Ranklist 2021 and not based on length of service; - iv. To declare that clause 11.7 of Ext. P6 Prospectus to the extent to which it says that inter-se seniority of physical service will be the criterion for selection and that is the basis on which rank list will be prepared is unjust, illegal and is W.A.No.1466/2021 4 violative of the MDS Regulations, 2017; - v. To declare that the petitioner is entitled to be considered in the service quota in NEET MDS Course 2021 based on her rank in NEET MDS rank of 1974; - vi. To issue such other orders, directions or writs as may be prayed under the facts and circumstances of the case. 2. Writ court directed the learned Government Pleader to take notice on behalf of respondent Nos. 1 to 4 therein. Writ court further directed the learned standing counsel to take notice for the Dental Council of India, represented by its Secretary, New Delhi, and National Medical Commission, represented by its Secretary, New Delhi – respondents 5 & 6 therein. On behalf of private respondents 7, 9 & 10, Mr. Aravind Ghosh, learned counsel, has taken notice. Urgent notice by speed post was directed to be served on Dr. Rafi A.N., Assistant Dental Surgeon, CHC Kesavapuram, Vellalloor - respondent No.8. 3. Thereafter, writ court considered as to whether clause 11.7 of Exhibit P6 – the Prospectus for Admission to the Post Graduate Courses in Dental Surgery (MDS-Master of Dental Surgery) in Dental Colleges of Kerala, which provides that inter se seniority in service as criteria for selection to MDS course, is valid or not ? W.A.No.1466/2021 5 4. After considering the judgment of the Hon'ble Supreme Court in **Tamil Nadu Medical Officers Association and others v. Union of** **India and Others** [(2021) 6 SCC 568], observations of the Hon'ble Apex Court in Civil Appeal Nos. 297 to 298 of 2015 - Exhibit P11 judgment dated 12.01.2015, and the regulations pertaining to admissions to Post Graduate courses, writ court, while granting the interim stay of operation of Clause 11.7 of Exhibit P6 prospectus dated 27[th] October, 2021, ordered as under: “5. When Regulation 9(1) of the Post Graduate Medical Education Regulations, 2000 provides that students for Post Graduate Medical Courses shall be selected strictly on the basis of their academic merit, the sustainability of adoption of any other criteria like seniority in service is doubtful. 6. In the circumstances, there will be an interim order staying the operation of Clause 11.7 of Exhibit P6 Prospectus pending final disposal of the writ petition. There will be a further direction to the 3[rd] respondent to provisionally include the petitioner in the service quota in the provisional allotment list to be published, if the petitioner is otherwise entitled based on her rank in the NEET – MDS, 2021. ” 5. Being aggrieved by the interim order dated 27[th] October, 2021, State of Kerala and others have preferred this intra court appeal on the grounds inter alia that the judgment in Hon'ble Apex Court, Exhibit P11 judgment dated 12.01.2015, is no longer a good law, in view of the subsequent pronouncement of the judgment by the Hon'ble Apex Court in **Tamil Nadu** W.A.No.1466/2021 6 ## **Medical Officers Association** (cited supra). 6. On the above aspect, Mr. K. Gopalakrishna Kurup, learned Advocate General, took us through the relevant paragraphs of the judgment in **Tamil Nadu Medical Officers Association** (cited supra) and contended that the State Government can prescribe the mode of selection insofar as in-service candidates seeking for admission to P.G.Dental course in State quota is concerned. 7. He further submitted that in view of the subsequent pronouncement, Clause 11.7 of Exhibit P6 prospectus cannot be held to be prima facie contrary to Regulation 7(2) of the Post Graduate Courses in Dental Surgery (MDS-Master of Dental Surgery) Regulations, 2017, (hereinafter called, “the Regulations, 2017”). For brevity, Clause 7.2 of the Regulations, 2017 issued vide notification dated 1[st] November, 2017, is reproduced: “7.2:The reservation of seats in dental college/institutions for respective categories shall be as per applicable laws prevailing in the States/Union territories. An all India merit list as well as Statewise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in NEET Test and candidates shall be admitted to post-graduate courses from the said merit list only.” 8. Heard learned Advocate General Mr. K. Gopalakrishna Kurup, assisted by learned Senior Government Pleader Mr. V. Manu, appearing for appellants, W.A.No.1466/2021 7 learned Advocate Mr. Kaleeshwaram Raj and Ms. Thulasi K. Raj, appearing for respondent No.1, learned Standing Counsel Mr. M. P. Prakash, appearing for respondent No.2, learned Standing Counsel Mr. Titus Mani, appearing for respondent No.3, learned counsel Mr. P. K. Manoj Kumar, appearing for respondent Nos. 4, 6 & 7, and perused the pleadings and material on record. 9. Reading of Clause 7(2) of the Regulations, 2017, indicates that an All India merit list as well as State merit list of eligible candidates shall be prepared on the basis of the marks obtained in NEET Test and candidates shall be admitted to post-graduate courses from the said merit list only. 10. Prima facie, we could deduce that there is no reference to inter se seniority of the eligible candidates for admission to the Post Graduate Courses in Dental Surgery (MDS-Master of Dental Surgery). 11. Though Mr. K. Gopalakrishna Kurup, learned Advocate General, made submissions on the grounds raised and inviting the attention of this Court to the judgment in **Tamil Nadu Medical Education** (cited supra), further contended that as per the schedule, admission for Post Graduate Courses in Dental Surgery (MDS-Master of Dental Surgery) has to be completed by the midnight of 10.11.2021, and sought interference of the impugned interim order, we are not inclined to do so. W.A.No.1466/2021 8 12. Yet another difficulty pointed out by the learned Advocate General is that though a request was made by the Government of Kerala to take up the writ petition for final hearing, as service of private respondents could not be completed, the same was not done. 13. At this juncture, we notice that in the writ appeal, except Dr.Rafi.A.N., Assistant Dental Surgeon, CHC Kesavapuram, Vellalloor – respondent No.5, all other private respondents have entered appearance, including Dr. Anitha Gopinathan, the writ petitioner. 14. As Government of Kerala is bound to adhere to the time schedule, we request the writ court to take up W.P.(C) No.21489 of 2021 for immediate disposal. 15. Writ petitioner shall take steps for service on Dr. Rafi A.N. - 8[th] respondent in W.P.(C) No.21489 of 2021, by speed post or by special messenger, so as to enable completion of service on all respondents in the writ petition. 16. Earlier, during the course of hearing, Mr.M.P. Prakash, learned counsel appearing for Dental Council of India, submitted that Dr. Rafi A.N. - respondent No.8 in the writ petition, has filed a separate W.P.(C) No.24370 of 2021 seeking for similar reliefs, which is pending consideration before the writ W.A.No.1466/2021 9 court. Steps be taken for completion of service on the 5[th] respondent herein. 17. Registry is directed to post W.P.(C) No.24370 of 2021, along with W.P.(C) No.21489 of 2021. Writ court is also requested to consider whether joint hearing is required in both the writ petitions. In the light of the above, the instant writ appeal is dismissed. smv **Sd/S.MANIKUMAR CHIEF JUSTICE Sd/SHAJI P.CHALY JUDGE**