Kerala High Court
Dr.Prasanth M.Mathew vs State Of Kerala on 28 July, 2013
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935
WP(C).No. 22209 of 2013 (A)
----------------------------
PETITIONER(S):
--------------------------
DR.PRASANTH M.MATHEW
UPPUMACKAL HOUSE, ATHIRAMPUZHA, KOTTAYAM-686562.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
SRI.K.R.GANESH
RESPONDENT(S):
----------------------------
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM.
2. THE DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.
3. THE MEDICAL COUNCIL OF INDIA
POCKET 14, PHASE-1, DWARAKA SECTOR 8
DELHI-110077.
4. DR.TEFFY JOSE,
KOTTACKAKATHU, S.H.MOUNT P.O., KOTTAYAM-686006.
R4 BY ADV. SRI.N.N.SUGUNAPALAN (SR.)
R4 BY ADV. SRI.S.SUJIN
R3 BY ADV. SRI.ALEXANDER THOMAS, SC, MCI
BY ADV. GOVERNMENT PLEADER MR. ROSHAN D. ALEXANDER.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.11.2013 THE COURT ON 29.11.2013 DELIVERED THE FOLLOWING:
WP(C).No. 22209 of 2013 (A)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXHIBIT P1 : TRUE COPY OF THE MBBS CERTIFICATE OF THE PETITIONER.
EXHIBIT P2 : TRUE COPY OF THE MD(GENERAL MEDICINE) CERTIFICATE OF THE
PETITIONER.
EXHIBIT P3 : TRUE COPY OF THE PROSPECTUS FOR ADMISSION TO POSTGRADUATE
SUPER SPECIALITY COURSES IN THE STATE OF KERALA FOR THE 2013 PUBLISHED
BY R1.
EXHIBIT P4 : TRUE COPY OF THE POSTGRADUATE MEDICAL EDUCATION
REGULATIONS 2000 ISSUED BY THE MEDICAL COUNCIL OF INDIA.
EXHIBIT P5 : TRUE COPY OF THE NOTIFICATION DT.27-7-2013 PUBLISHED BY
THE COMMISSIONER FOR ENTRANCE EXAMINATIONS AND RANK LIST ATTACHED TO
THE SAME.
EXHIBIT P6 : TRUE COPY OF THE NOTIFICATION DT.27-7-2013 PUBLISHED BY R2.
EXHIBIT P7 : TRUE COPY OF THE NOTIFICATION DT.29-7-2013 PUBLISHED BY
R2.`
EXHIBIT P8 : TRUE COPY OF THE JUDGMENT DT.31-7-13 IN WPC 15551/2013 AND
CONNECTED CASES OF THIS HON'BLE COURT.
EXHIBIT P9 : TRUE COPY OF THE MODIFIED RANK LIST PUBLISHED BY THE
COMMISSIONER OF ENTRACE EXAMINATIONS.
EXHIBIT P10 : TRUE COPY OF THE NOTIFICATION DT.3-8-2013 PUBLISHED BY
THE R2.
EXT.P11 TRUE COPY OF RELEVANT PAPER CUTTING OF THE PAPER
MALAYALA MANORAMA DAILY DATED 28.07.2013
RESPONDENT(S)' EXHIBITS (PRODUCED ALONG WITH I.A. 12439 OF 2013)
EXT.R3(A) TRUE COPY OF GOVT. OF KERALA LETTER NO.18267
/S3/2013/H&FWD DT.17.8.2013.
EXT.R3(b) TRUE COPY OF MCI LETTER NO.7/10/2013/LEGAL/8655/
32361 DT. 5.9.2013.
EXT.R3(a) TRUE COPY OF THE LETTER B2/9407/2013/DME DT.31.07.2013
(PRODUCED ALONG WITH COUNTER AFFIDAVIT DATED 25.09.2013.)
EXT.R3(b) TRUE COPY OF THE LETTER NO.1260/PGSS/2013/TA3/CEE
DATED 02./08.2013.
(PRODUCED ALONG WITH COUNTER AFFIDAVIT DATED 25.09.2013.)
EXT.R4(a) TRUE COPY OF THE NOTIFICATION PUBLISHED ON 26.7.2013.
EXT.R4(b) TRUE COPY OF THE NOTIFICATION DT.27.7.2013 PUBLISHED
BY GOVERNMENT OF KERALA
EXT.R4(c) TRUE COPY OF THE INTERIM DIRECTION IN WP(C)21532/2013
DTD.30.08.2013.
EXT.R4(D) TRUE COPY OF THE NOTICE DATED 4.9.2013 ISSUED BY
THE DIRECTOR OF MEDICAL EDUCATION
EXT.R4(e) TRUE COPY OF THE ADMISSION NOTICE FOR ALLOTMENT
ISSUED BY THE PRINCIPAL, TD MEDICAL COLLEGE,
ALAPPUZHA.
EXT.R4(f) TRUE COPY OF THE MEMO ADMISSION NOTICE DATED 9.9.2013.
P.R. RAMACHANDRA MENON, J.
..............................................................................
W.P.(C)No. 22209 OF 2013
.........................................................................
Dated this the 29th November, 2013
J U D G M E N T
The fresh selection proceedings conducted after publishing the Rank list pursuant to Ext. P8 judgment passed by this Court in W.P (C)No.15551 of 2013 and connected cases,(holding that the relevant clause in the Prospectus providing for 100% reservation to candidates of Kerala Origin for Admissions to Post Graduate Super Specialty Courses is bad) leading to the selection of the 4th respondent in respect of 'DM-Cardiology', is under challenge in this writ petition.
2. The petitioner completed his MBBS course and secured PG qualification for MD-General Medicine, as borne by Exts.P1 and P2 certificates issued by the concerned Universities. The Prospectus issued by the first respondent for admission to the 'Post Graduate- Super Speciality Course' in the State of Kerala for the year 2013 was approved by the first respondent as per the relevant Government Order (G.O.(Rt) No.1950/2013/H& FWD dated 05.06.2013 vide Ext.P3. As per Ext. P3 Prospectus, the total number of 20 seats were segregated under different heads such as General Merit, Service W.P.(C)No. 22209 OF 2013 2 Quota etc; with further sub division under Service Quota as Medical Education Service Quota and Health Service Quota respectively.
3. By virtue of Clause 3.4 of Ext. P3 prospectus, all candidates including Service Quota candidates had to qualify the Entrance examination conducted by the Commissioner of Entrance Examination, Kerala by securing the minimum of 50% marks; whereas in the case of SEBC and SC/ST candidates , it was only 40%. Inspite of the fact that there was no scope for any further deduction or for lowering down the qualification criteria for the Service Quota candidates (having issued the same in conformity with Ext.P4 Post Graduate Medical Education Regulations, 2000 issued by the third respondent Medical Council of India) under Section 33 and 20 of the Indian Medical Council Act, 1956 and also inspite of the legal position made clear by the Apex Court as per the decision in State of Madhya Pradesh and others vs Gopal D. Tirthani and others[(2003) 7 SCC 83] and Harish Verma and others vs Ajay Srivastava and another [(2003) 8 SCC 69], the first respondent in Clause W.P.(C)No. 22209 OF 2013 3 8.1.1. of Ext. P3 Prospectus had added a 'proviso' to the effect that, when sufficient number of candidates in the respective categories of Service Quota fail to secure the minimum marks as prescribed in the Entrance Examination held for the Academic year 2013-14 for admission to the PG Super Speciality Courses, the State Government, in consultation with the Medical Council of India, may at its discretion, lower the minimum marks required for admission to PG Super Speciality Course for candidates belonging to the respective categories and the marks so lowered by the State Government shall be applicable for the said academic year only. It is pointed out that the third respondent /Medical Council of India had not agreed to any such lowering down of the credentials.
4. As mentioned hereinbefore, by virtue of Clause 3.1.1. and 3.1.2 of Ext.P3 Prospectus, it was stipulated that the candidates of Kerala Origin were to have preference. Contending that the said clauses were unconstitutional, for having provided 100% reservation, which was alien to the Scheme of reservation in view of the law declared by the Apex Court as per the decision W.P.(C)No. 22209 OF 2013 4 in Saurabh Chaudri vs. Union of India [(2003) 11 SCC 146] and by a Division Bench of this Court as per the decision in Saurabh Jain vs. State of Kerala [2011 (2) KLT 646], several candidates belonging to other States had approached this Court filing various writ petitions , wherein interim orders were passed, permitting them to participate in the Entrance Examinations, but their results were withheld. The above writ petitions were finally heard by this Court and as per Ext.P8 common judgment dated 31.07.2013, it was declared that Clauses 3.1.1 and 3.1.2 of Ext.P3 Prospectus in W.P.(C) 15594 of 2013 and Clauses 2(a)(i) and (ii) of Ext,P4 Notification therein were not correct or sustainable. Accordingly, the concerned respondents were directed to declare the results of the petitioners and give admissions to them, based on their rank in the examination for admission to Medical Post Graduate Super Speciality Courses-2013, subject to satisfaction of all other requirements, as specified.
5. The case of the petitioner is that, Ext.P5 Rank List had already been issued by the concerned respondent, wherein the W.P.(C)No. 22209 OF 2013 5 petitioner was assigned the 25th rank at Sl.No.27. But since the total number of seats for DM-Cardiology was only 20, the petitioner could not aspire to have a seat. In the course of further proceedings, since there was no sufficient number of Service Quota candidates and further since the claim of the first respondent to have the qualification reduced/lowered in respect of Service Quota was not acceded to by the third respondent/MCI, the unfilled seats in the Service Quota came to be pooled into General Quota, by virtue of Clause 8.1.5. of Ext.P3 Prospectus. By virtue of such pumping in of 5 seats, chances for getting admission to the petitioner came to be bright and declared and hence the candidates placed at Sl.Nos.1 to 25 of Ext.P5 Rank List were called for Counseling to be held on 30.07.2013. It is contended by the petitioner that, on 30.07.2013, the petitioner attended the Counseling, but the 4th respondent did not choose to turn up, as a result of which, the right of the 4th respondent who was placed at rank No.21 was lost for ever, by virtue of the mandate under Clause 12.2.1 and 12.2.2.
W.P.(C)No. 22209 OF 2013 6
6. However, according to the petitioner, things took a different turn, pursuant to Ext.P8 judgment, and in the guise of giving effect to Ext.P8 judgment, the concerned respondent recast Ext.P1 rank list by including the petitioners in Ext.P8 judgment and other candidates from outside (who are similarly situated but not parties to any proceedings before this Court). It was accordingly, that Ext.P9 rank list was prepared, followed by Ext.P10 communication, calling the concerned candidates to attend the Counseling to be held on 12.08.2013. The 4th respondent attended the Counseling based on the interim order passed by this Court in W.P.(C)No.21532 of 2013 and came to be selected and allotted a seat, which is stated as per se wrong and illegal being contrary to Clause 12.2.1 and 12.2.2. The case of the petitioner is that, as per Ext.P8 judgment, only the claim of the petitioners to the said writ petition could have been considered and if so, the petitioner herein would have been a sure candidate, to be considered for allotment being placed at 'Rank.No.25'; more so since the claim of the 4th respondent was never to be entertained , who had W.P.(C)No. 22209 OF 2013 7 forfeited her chance for having not attended the counseling originally held on 30.07.2013. Hence the challenge.
7. The third respondent has filed a counter affidavit referring to the sequence of events and asserting that the idea and understanding of the petitioner is totally wrong and misconceived. It is stated that the stipulation in Clause 12.2.1 and 12.2.2 is only in respect of a continued counseling exercise, after conducting the first round to fill up the 'left over' seats and it is with regard to such a situation that the restriction has been imposed to the effect that the candidates who did not participate in the first counseling would not be considered and their chance would be forfeited for ever. It is asserted that the Counseling held on 12.08.2013 was never one, which was in continuation of the Counseling held on 30.07.2013, to fill up the 'left over' seats. On the other hand, pursuant to Ext.P8 judgment the entire list had to be recast, as all the candidates concerned had to be given an option, both in respect of the Course and in respect of the concerned College of their choice. It was accordingly, that Ext.P9 revised rank list was prepared, W.P.(C)No. 22209 OF 2013 8 followed by Ext.P10 inviting the candidates to attend the Counseling scheduled to be held on 12.08.2013, which was to be the 'first round of counseling' in the revised process and as such, the clause sought to be relied on by the petitioner to edge out the 4th respondent is not attracted.
8. The 4th respondent has also filed a detailed counter affidavit producing copies of the relevant documents and explaining the circumstances under which she could not participate in the counseling pursuant to Ext.P5, originally scheduled on 29.07.2013, as borne by Ext. R4(a), which was subsequently adjourned to 30.07.2013 as per Ext. R4(b). The rights and liberties of the 4th respondent to be considered along with all others concerned pursuant to Ext.P8 judgment, have been reiterated, asserting that, the credentials of the 4th respondent being placed at Rank No.21 stand far in front of the petitioner, who is placed admittedly behind at Rank No.25.
9. Heard Mr.Elvin Peter, the learned Counsel for the petitioner, Mr. N.N. Sugunapalan, the learned Sr. Counsel for the 4th respondent, Mr. Roshan D Alexander, the learned W.P.(C)No. 22209 OF 2013 9 Government Pleader appearing for the State/Department and also Mr. Alexander Thomas appearing for the third respondent/Medical Council of India, at length.
10. There is no dispute with the proposition mooted by the petitioner that all the parties are bound by the terms of the Prospectus and so also, there is no dispute with regard to Clauses 12.2.1 and 12.2.2. But the more relevant question is whether Ext.P9/P10 proceedings are "in continuation of Ext.P5/Counseling held on 30.07.2013", to attract the aforesaid clauses and to forfeit the rights of the 4th respondent, for having not attended the counseling held on 30.07.2013.
11. Ext.P8 judgment was passed by this Court on the very next date of the counseling held on 30.07.2013, holding that there could not have been 100% reservation for the natives of Kerala, in view of the binding judicial precedents rendered by the Apex Court and also by a Division Bench of this Court cited supra. It was accordingly held that, Clauses 3.1.1 and 3.1.2 of the Prospectus (Ext.P3 therein) and Clauses 2(a)(i) and (ii) of Notification (Ext.P4 therein) were not liable to be enforced W.P.(C)No. 22209 OF 2013 10 against the petitioners and direction was given to recast the list and to give admissions to the petitioners on the basis of their rank in the select list. As a matter of fact , declaration of law was made by the Apex Court as per the decision rendered in Saurabh Chaudri vs. Union of India [(2003) 11 SCC 146] and by a Division Bench of this Court as per the decision in Saurabh Jain vs. State of Kerala [(2011)(2) KLT 646]. The declaration of law is applicable to all persons concerned, irrespective of the fact whether they are parties to the writ petition or not. This Court finds support in this regard from the position made clear by the Apex Court in Ashwani Kumar and others vs. State of Bihar and others [(1997)2 SCC 1] . Merely for the reason that this Court has referred to the course to be pursued in the case of the petitioners in Ext.P8 judgment, it was never a process to be confined limiting the exercise only to the petitioners therein and the liability upon the respondents was to recast the list/effect allotment on the basis of the law declared . In the said circumstance, this Court finds it difficult to accept the proposition mooted by the petitioner. W.P.(C)No. 22209 OF 2013 11
12. Yet another aspect to be noted is that the petitioner has not chosen to challenge Ext.P9 rank list or Ext.P10 proceedings in this writ petition. Similarly there is no dispute with regard to the factual position that the petitioner occupies only a lower pedestal than that of the 4th respondent, even in Ext. P5 rank list. Thus, the 4th respondent stands more meritorious than the petitioner and since paramount importance is to be given to the 'merit' in respect of admissions to Super Speciality Courses, as made clear by the Apex Court in Saurabh Chaudri vs. Union of India [(2003) 11 SCC 146] the challenge cannot but fail. It is also brought to the notice of this Court that the cut off date prescribed by the Apex Court in terms of the guidelines issued by the Medical Council of India for giving admissions to the course in question was '30.09.2013', By virtue of the law declared by the Apex Court in Priya Gupta vs. State of Chhattisgarh [(2012] 7 SCC 433], nobody could have been ordered to be admitted after the cut off date. It is true that some exceptional circumstances have been carved out in the case reported in (2012)7 SCC 389 [Asha vs. Pt. B.D. Sharma, W.P.(C)No. 22209 OF 2013 12 University of Health Sciences and others (as dealt with in paragraphs 30, 31 and 32 therein). Admittedly, no merit is by- passsed in the present case, to attract any such exceptional circumstances, since the petitioner was placed at only Rank.No.25, while the 4th respondent was placed at Rank No.21 in Ext.P5 select list .
In the above circumstances, this Court finds that there is absolutely no merit or bonafides in the writ petition. Interference is declined and the writ petition is dismissed accordingly.
P.R.RAMACHANDRA MENON JUDGE lk