Kerala High Court
Dr.Alvin Treasa George vs State Of Kerala on 30 June, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
SATURDAY, THE 16TH DAY OF SEPTEMBER 2017/25TH BHADRA, 1939
WP(C).No. 18249 of 2016 (E)
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PETITIONER:
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DR.ALVIN TREASA GEORGE, M.D,
D.N.B, DEPARTMENT OF GENERAL MEDICINE,
AMALA INSTITUTE OF MEDICAL SCIENCES,
THRISSUR-680005.
BY ADV. SMT.CHINCY GOPAKUMAR
RESPONDENTS:
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1. STATE OF KERALA, REP. BY
CHIEF SECRETARY TO GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.
2. SECRETARY, MEDICAL COUNCIL OF INDIA,
POCKET-14, SECTOR-8 DWARAKA PHASE-1,
NEW DELHI-110077.
3. DIRECTOR OF MEDICAL EDUCATION,
GOVERNMENT OF KERALA
THIRUVANANTHAPURAM - 695 001.
4. THE PRINCIPAL,
AMALA INSTITUTE OF MEDICAL SCIENCES,
AMALA NAGAR, THRISSUR-680555.
R1 & R3 BY SENIOR GOVT.PLEADER SMT.MARY BEENA JOSEPH
R2 BY SRI.TITUS MANI VETTOM, SC
R4 BY SRI.KURIAN GEORGE KANNANTHANAM (SENIOR ADVOCATE)
ADV.SRI.TONY GEORGE KANNANTHANAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16-09-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C).No. 18249 of 2016 (E)
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APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE UNIVERSITY
OF CALICUT CONFERRING ON THE PETITIONER, THE DEGREE OF
DOCTOR OF MEDICINE.
EXT.P2: PHOTOCOPY OF THE G.O(MS) NO.154/2007/H& FWD
DATED 30/06/2007.
EXT.P3: ORDER NO.G2/19472/2007/DME DATED 11TH JULY, 2007.
EXT.P4: EXPERIENCE CERTIFICATE ISSUED FROM THE GOVT. MEDICAL
COLLEGE, THRISSUR.
EXT.P5: CERTIFICATE ISSUED BY THE AMALA INSTITUTE OF MEDICAL
SCIENCES, THRISSUR.
EXT.P6: LETTER DATED 11.9.2015 ISSUED BY THE MEDICAL COUNCIL
OF INDIA TO THE DEAN/PRINCIPAL, AMALA INSTITUTE OF
MEDICAL SCIENCES.
EXT.P7: PHOTOCOPY OF THE RELEVANT PAGES OF "MINIMUM
QUALIFICATIONS FOR TEACHERS IN MEDICAL INSTITUTIONS
REGULATIONS, 1998'.
EXT.P8: TRUE COPY OF THE ORDER NO.G2/19472/2007/DME DATED 11TH
JULY, 2007 OF THE DIRECTOR OF MEDICAL EDUCATION,
THIRUVANANTHAPURAM ISSUED TO DR.BINDURANI.S.
EXT.P9: PHOTOCOPY OF THE REPRESENTATION SENT BY THE PETITIONER
TO MCI DATED 5.10.2015.
EXT.P10: PHOTOCOPY OF THE COVERING LETTER SENT BY THE
PETITIONER TO MEDICAL COUNCIL OF INDIA
DATED 7.12.2015.
EXT.P11: PHOTOCOPY OF LETTER ISSUED BY ASSISTANT REGISTRAR,
MEDICAL COUNCIL OF INDIA DATED 22.02.2016.
EXT.P12: PHOTOCOPY OF EXPERIENCE CERTIFICATE ISSUED TO THE
PETITIONER.
RESPONDENTS' EXHIBITS & ANNEXURES:
EXT.R3A: TRUE COPY OF RELEVANT PAGE OF TEACHERS ELIGIBILITY
QUALIFICATION REGULATION.
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WP(C).No. 18249 of 2016 (E)
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ANNEXURE R2A: TRUE COPY OF THE RELEVANT PAGES OF THE
NOTIFICATION NO.MCI-12(2)/98-MED "MINIMUM
QUALIFICATIONS FOR TEACHERS IN MEDICAL
INSTITUTIONS REGULATIONS, 1998".
ANNEXURE R2B: TRUE COPY OF THE NOTIFICATION NO.MCI-12(2)/2009-
MED-22654 DATED 21.7.2009.
//TRUE COPY//
P.S. TO JUDGE
mbr/
P.V.ASHA J.
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W.P.(C).No.18249 of 2016
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Dated this the 16th day of September, 2017
J U D G M E N T
Petitioner, who is working as Associate Professor in the Department of General Medicine, Amala Institute of Medical Sciences, has filed this writ petition, challenging Ext.P11 order passed by the Medical Council of India, by which she is found ineligible for promotion as Associate Professor.
2. Petitioner is a Post Graduate with M.D in General Medicine and D.N.B (General Medicine). She points out that while she was undergoing PG Degree Course she has completed three years junior residency, as part of the Post Graduation. As per Ext.P1 issued on 13.11.2007, the University of Calicut awarded her the Degree of Doctor of Medicine in General Medicine. After she completed the PG Degree course, she worked as Senior Resident for the period from 09.08.2007 to 08.08.2008 under the W.P.(C).No.18249 of 2016 2 Government of Kerala, based on Ext.P3 order of appointment. Petitioner submits that her appointment as Senior Resident was made on the basis of notification issued, based on Ext.P2 order dated 30.06.2007, by which applications were invited for appointment to the post of Medical/Dental/PG Degree Holders/Super Speciality Degree Holders as Senior Residents on contract basis in the Government Medical/Dental Colleges under bonded obligation. As per Ext.P2 order issued on 30.06.2007, Government had accorded sanction for appointing Medical/Dental/PG Degree Holders/Super Speciality Degree Holders as senior Residents on contract basis in the Government Medical/Dental Colleges for a period of one year, as partial fulfillment of their bonded obligation, against the vacancies in the sanctioned posts of Lecturers and Assistant Professors, on a consolidated remuneration of Rs.15,000/- per month. This contract arrangement was to be terminated as and when regular hands join duty either through PSC or by promotion or W.P.(C).No.18249 of 2016 3 on completion of one year term. Simultaneously, Government also ordered enhancement of remuneration to the contract appointees upto Rs.10,000-15,000/-, in the case of Lecturers with Medical PG Degree/Super Speciality Degree. In Ext.P3 order of appointment, issued on 11.07.2007, the Director of Medical Education ordered as follows: "Dr.Alvin Treasa George, who is a candidate for the post of Senior/Junior Resident/Lecturer on contract basis as per boned obligation in response to the notification read as 3rd paper, is temporarily appointed as Senior/Junior Resident on Contract Basis in the Department of General Medicine, Medical College Thrissur on a consolidated pay of Rs.15,000/- per month for a period of one year --------."
3. Ext.P3 order refers to the order Ext.P2 issued on 30.06.2007, another order issued by Government on 30.06.2007 itself and the notification issued by the DME on 30.06.2007. The Principal of the Medical College has issued Ext.P4 experience W.P.(C).No.18249 of 2016 4 certificate certifying her service for the period from 09.08.2007 to 08.08.2008 as Senior Resident in the Department of Medicine.
4. In the year 2009, petitioner got appointment in Amala Institute of Medical Sciences, Thrissur, as Assistant Professor. She was promoted as Associate Professor with effect from 01.10.2013 as per Ext.P5 order on 28.01.2014, on the basis of the recommendation of the Screening Committee for faculty promotion. While so, a team from Medical Council of India visited Amala Institute of Medical Sciences in connection with grant of recognition to the MD Course in General Medicine conducted in that College. In this process, the qualification of the faculties including that of the petitioner was verified by the Medical Council of India. Thereafter the Medical Council of India issued Ext.P6 letter to the Principal of the Amala Institute of Medical Sciences, informing that recognition cannot be granted to the two seats of MD Course in General Medicine on account W.P.(C).No.18249 of 2016 5 of the fact that the promotion of petitioner as Associate Professor was found to have been made before she acquired the requisite teaching experience. It was stated that Post Graduate Medical Education Committee considered the Compliance Verification Assessment Report along with the Council Assessors' Report and the compliance submitted by the College Authorities and decided not to recommend recognition of the two seats granted by Kerala University of Health Sciences to the College on the ground that petitioner's promotion as Associate Professor was not as per Regulations. It was stated that the petitioner has got experience as Assistant Professor for a period of 4 years only against the requirement of 5 years and therefore, there is no Associate Professor in Unit II.
5. On coming to know about Ext.P6 letter, petitioner submitted Ext.P9 representation before the 2nd respondent, pointing out the qualification acquired by her. She pointed out that she had W.P.(C).No.18249 of 2016 6 already worked for a period of one year in the department of Biochemistry as provisional Lecturer in Biochemistry, even before she acquired the post graduate degree. Thereafter, she completed 3 years Junior Residency as part of Post Graduation during 2004-2007 and after she acquired the PG Degree-MD in General Medicine in May, 2007 she rendered 1 year service in Government Medical College as part of bonded obligation to Kerala Government. She pointed out that she was posted in the vacancy of Lecturer/Assistant Professor in the department of General Medicine, Government Medical College, Thrissur, though her posting was as Senior Resident/Lecturer.
6. However, that representation was rejected as per Ext.P11 order by the Medical Council of India, informing her that she was not eligible for the post of Associate Professor and that Council had already considered all the documents relating to her academic qualification. The writ petition was filed at this W.P.(C).No.18249 of 2016 7 stage.
7. Petitioner points out that Dr.Bindurani S., who also acquired M.D degree along with her got appointment as Senior/Junior Lecturer on contract basis, pursuant to the very same notification issued on the basis of Ext.P2. Her appointment was also as a part of bonded obligation. But since her appointment was in the Medical College, Kozhikode it was described as one in the post of Senior/Junior Lecturer on contract basis, as evident from Exts.P8 and P8(a) orders. Petitioner points out that she has also rendered service equivalent to that of Lecturer on the basis of her appointment as per Ext.P3 order. According to the petitioner, she was performing the duties of Lecturer on the basis of her appointment as Senior/Junior resident and the service rendered by her for a period of one year on the basis of Ext.P3 is liable to be considered as experience for the purpose of appointment as Associate Professor along with 4 years of service rendered by her as Assistant W.P.(C).No.18249 of 2016 8 Professor.
8. Respondents have filed separate counter affidavits. In the statement filed by the second respondent, it is stated that as per the MCI Regulations, an Assistant Professor is entitled to promotion as Associate Professor only on completion of 5 years service/experience as Assistant Professor, as provided in Ext.R2(a) Regulations, 1998. It is further stated that even after the amendment of the Regulations on 21.07.2009, promotion is admissible to an Assistant Professor on completion of 4 years service in the subject concerned in case he has to his credit a minimum of 2 research publications in the indexed/national journals. However, as per 1998 Regulations, the requirement was 5 years teaching experience as Assistant Professor and it is only if the petitioner has got 4 research publications. she would have become eligible for promotion as Associate Professor on completion of 4 years teaching experience, based on the amended Regulations. It is W.P.(C).No.18249 of 2016 9 their case that as on 01.10.2013 the date from which petitioner was granted promotion by the Amala college she was having the experience of only 4 years as Assistant Professor and she did not have any research publication. Therefore, she was not entitled to be promoted as Associate Professor.
9. The 3rd respondent has filed a counter affidavit stating that petitioner's appointment was as Junior/Senior resident and her promotion as Associate Professor by the Amala College was on completion of 4 years service as Assistant Professor in that College. It is their case that petitioner was given temporary appointment as Senior/Junior resident on contract basis on a consolidated pay for a period of 1 year in the Government Medical College. According to them, the bonded obligation done by the petitioner in Government Medical College cannot be reckoned as qualifying service for promotion as Associate Professor since it was only a temporary service and the service as Junior/senior resident W.P.(C).No.18249 of 2016 10 cannot be treated as service as Lecturer/Assistant Professor, going by Ext.R3(a) Regulations.
10. I heard the learned counsel appearing for the petitioner, learned Government Pleader and learned Standing Counsel for MCI and considered the contentions.
11. The only question to be considered is whether the service rendered by the petitioner on the basis of Ext.P2 order and Ext.P3 appointment can be considered as experience for the purpose of promotion as Associate Professor. Petitioner's appointment as per Ext.P3 order was based on a notification issued pursuant to Ext.P2. In Ext.P2, Government has accorded sanction for appointment of Medical/Dental/PG Degree Holders/Super Speciality Degree Holders as Senior Residents on contract basis in Government Medical Colleges as part of bonded obligation against the "vacancies in the sanctioned post of Lecturers and Assistant Professors". From paragraph 3 of Ext.P2 order, it can be seen that W.P.(C).No.18249 of 2016 11 appointment of the persons envisaged as per that order was against the sanctioned post of Lecturer/Assistant Professors. Therefore petitioner's appointment, which was made on the basis of Ext.P2, from among those who were having PG Degree and Super Speciality, as a part of bonded obligation could have been only against the vacant post of Lecturer/Assistant Professor. As far as petitioner is concerned, there is no dispute over her acquisition of Ext.P1 Degree of Doctor of Medicine, after completing 3 years residency period. When the appointment of the petitioner was against a sanctioned post of Lecturer, there is no reason for not reckoning that service towards experience for the purpose of promotion as Associate Professor. Moreover there is no rival claimant. The inspection was carried out by the MCI for the purpose of granting recognition to the PG Degree Course in Amala College for which a faculty of Associate Professor was also acquired. As petitioner had completed 1 year service W.P.(C).No.18249 of 2016 12 in the post of Lecturer/Assistant Professor as seen from the order of appointment Ext.P3 and certificate Ext P4, the benefit of that service for the purpose of promotion as Associate Professor cannot be denied, merely on the ground that the order of appointment describes her as senior Resident especially when persons similarly situated like the petitioner was granted appointment as Lecturer on the basis of the very same notification, as can be seen from Ext.P2, P3 as well as Ext.P8 and Ext.P8(a) orders.
12. In the above circumstances, I am of the view that Ext.P11 order requires reconsideration, as for the purpose of this case, the service rendered by the petitioner on the basis of Ext.P3 and Ext.P4 orders in the post of Lecturer/Assistant Professor are liable to be reckoned towards experience as Lecturer/Assistant Professor for the purpose of promotion as Associate Professor in the 4th respondent College, along with her service in Amala College.
Under the above circumstances, Ext.P11 order is W.P.(C).No.18249 of 2016 13 set aside and there shall be a direction to the second respondent to reconsider Ext.P9 representation and pass fresh orders on it in tune with the observations made, within a period of 'one month' from the date of receipt of a copy of the judgment. Consequential orders revising Ext.P6 order shall also be issued on the basis of the orders to be passed on Ext.P9.
The writ petition is disposed of accordingly.
Sd/-
P.V.ASHA, JUDGE.
AS