Madras High Court
Dr.S.Dinesh Raj vs The State Of Tamil Nadu on 13 August, 2018
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.08.2018 CORAM: THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM W.P.No.13510 of 2018 & W.M.P.No.15915 of 2018 Dr.S.Dinesh Raj .. Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Fort St. George, Chennai - 600 009. 2.The Director of Medical Education, Kilpauk, Chennai - 600 010. 3.The Secretary, Selection Committee, The Directorate of Medical Education, Kilpauk, Chennai - 600 010. 4.The Joint Director Health Services, Tirunelveli District. 5.Medical Council of India, Represented by its Secretary, Pocket-14, Sector-8, Dwarkha Phase-I, New Delhi - 110 077. .. Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, to direct the respondents 1 to 3 to re-allot a seat in M.S.(Orthopaedics) in a Government Medical College as per the revised rank of the petitioner in the Medical Post-Graduate Degree admission for the academic year 2018-2019. For Petitioner : Mr.S.Arjun For Respondents : Mr.K.Karthikeyan Government Advocate for R1 to R4 Mr.V.P.Raman for R5 O R D E R
Heard Mr.S.Arjun, learned counsel for the petitioner; Mr.K.Karthikeyan, learned Government Advocate for the respondents 1 to 4; Mr.V.P.Raman, learned Standing Counsel for the fifth respondent and perused the materials available on record.
2. The prayer in the Writ Petition is for issuance of Writ of Mandamus, directing the respondents 1 to 3 to re-allot a seat in M.S.(Orthopaedics) in a Government Medical College for the academic year 2018-2019.
3. The case of the petitioner is that he belongs to Backward Class Community and after successfully completing M.B.B.S Degree Course at Sri Ramachandra Medical College in the year 2009 and Diploma in Orthopaedics from Madras Medical College in the year 2013-15, he has been working as Assistant Surgeon at Cheranmadevi Government Hospital in Tirunelveli District.
4. The petitioner would state that he appeared in NEET-PG 2018 examination held in January 2018 and secured 651.24 marks and thereby, he became eligible for Post Graduate admission. He had applied for P.G. Courses in Government as well as Self Financing College in Tamil Nadu for the academic year 2018-19. Pursuant to the notification issued by the first respondent in G.O.(D)No.413, Health and Family Welfare (MCA-1) Department, dated 16.03.2018, the petitioner was given general rank 1203 in the Counselling and on 20.05.2018, he was allotted M.S.(Orthopaedics) in Raja Muthiah Medical College & Hospital and he joined on 21.05.2018.
5. The petitioner would claim that as per G.O.Ms.No.96, Health and Family Welfare (MCA-1) Department, dated 23.03.2018, the petitioner is entitled to get incentives, but without adding the incentive marks, he was ranked as 1203 in the Counselling and hence, he made a representation to the third respondent to grant incentive marks, re-allotment of rank and preference in the second counselling. Thereafter, he was granted 8% incentive marks and was shown as 689A in the revised rank list. It is further alleged that some service candidates belong to Backward Class Community, who secured less marks and placed behind him in the rank list were allotted M.S.(Orthopaedics) seats in Government Medical Colleges, but the petitioner was not allotted in Government College.
6. According to the petitioner, his family is not financially sound and his father had availed loan to pay the academic fees of Rs.9,80,000/- for M.S.(Orthopaedics) seat in Raja Muthiah Medical College & Hospital. Since his detailed representation dated 29.05.2018 was not considered favourably by the respondents, he has come forward with this Writ Petition.
7. In the common counter filed by the respondents, the policy decision of the Government for allotment of Post Graduate Degree / Diploma Seats to the in-service candidates and subsequent amendment to Regulation 9 of the Post Graduate Medical Education Regulation, 2000, by the Medical Council of India and the Writ Petition filed by one Dr.Rajesh Wilson in W.P.No.6031 of 2017 to provide the incentive marks in accordance with the amended Regulation and the Writ Appeal filed by the Government in W.A.No.484 of 2017, dated 03.05.2017 and the order passed in W.A.No.1051 of 2018, dated 17.05.2018 and the order passed by the Hon'ble Supreme Court in S.L.P.Nos.16541 and 16542 of 2017 and the issuance of G.O.Ms.No.96, dated 23.03.2018 have been elaborately stated.
8. It is further stated that consequent to the order passed in the Writ Appeal dated 17.05.2018, merit list was published on 17.05.2018 and the counselling schedule was published on 18.05.2018. The petitioner participated in the counselling on 20.05.2018 and as per the option, he was allotted M.S.(Orthopaedics) in Raja Muthiah Medical College & Hospital, according to his merit list and his reservation. Thereafter, it was brought to the notice of the Government by the Director of Medical and Rural Health Services that some of the areas which are eligible to be classified under both A2 and A3 categories as per G.O.96, have not been found in A2 category. The Medical Officers, who rendered the service in the above said areas were awarded incentive marks after reclassification of those areas under A2 category by Director of Medical and Rural Health Services. After reclassification and after verification of the representations received from the candidates, errata list has been released with new rank position in the official website.
9. It is further stated that the petitioner gave a representation letter after joining his allotted seat in M.S.(Orthopaedics) in Raja Muthaiah Medical College and Hospital and on the basis of his representation, service particulars were verified and the petitioner's service area is found place under 'B' Category. The petitioner was instructed to attend the second phase of counselling as per his revised rank position of 689A instead of 1203 and allowed to take a seat in availability of seats in colleges at the time of second phase of counselling. At that time, no M.S.(Orthopaedics) was available in the Government Medical Colleges and hence, the petitioner was retained in Raja Muthaiah Medical College and Hospital. It is further stated that the petitioner is undergoing the above course by availing all benefits as a Government Servant and as per the order of the Hon'ble Supreme Court, admission to Post Graduate Degree / Diploma in 2018-19 session is over on 31.05.2018 and no seats are vacant for M.S.(Orthopaedics) in Government Medical College.
10. The learned counsel for the petitioner would urge that admittedly, the petitioner is entitled to incentive marks as the area in which he is serving as categorized as A3 as per G.O.(Ms)No.96 and at the time of preparing the first merit list, the incentive marks were not added due to the mistake committed by the officials of the respondents, for which, the petitioner cannot be penalised. It is further contended that the candidates who secured lesser marks in Backward Class Community have been allotted seats in Government Medical Colleges and hence, a suitable direction has to be issued to the respondents to re-allot a seat in Government Medical College.
11. The learned Government Advocate for the respondents 1 to 4 reiterated the averments made in the counter affidavit and submitted that there is no vacancy in the Government Medical College and if any vacancy arises in future, the same will be filled according to the ranking.
12. The learned Standing Counsel for the fifth respondent by placing the decision of this Court in W.A.No.1575 of 2016, dated 22.12.2016 and the decision of the Hon'ble Supreme Court in 2012 (7) SCC 389 [ASHA v. PT. B.D. SHARMA UNIVERSITY OF HEALTH SCIENCIES], submitted that the cut off date for admission to Post Graduate Course is over 31.05.2018 and even if any vacancy arises in future that could be filled only on merits and if the petitioner could be given any preference, such direction can be given only after giving specific finding.
13. In the instant case, it is not in dispute that the petitioner secured 651.24 marks in the NEET PG 2018 conducted in the month of January 2018 and he is eligible to get incentive of 8 marks. In the counter filed by the respondents 1 to 4, it is admitted that without adding incentive marks, a rank merit list was prepared and the petitioner was given general rank 1203 and after adding incentive his rank was 689A in the revised rank list. In the Writ Petition, in paragraph No.13, the petitioner has narrated the fact that the candidates who secured lesser marks in the NEET-PG Examinations have been allotted Government quotas in M.S.(Orthopaedics) and it is extracted below:-
Rank Name Score Comm-unity Category Allotment College 689A Dinesh Raj S 651.24 BC Service MS Ortho Raja Muthiah Medical College, Chidambaram 751 M.M.Kavin 645.60 BC Service MS Ortho Government Medical College, Salem 857 Nithyavadhanan SS 636 BC Service MS Ortho Government Medical College, Salem 904 Ravindran 630.50 BC Service MS Ortho Government Medical College, Thanjavur 931 Thirumalai Kumar 627.70 BC Service MS Ortho Government Medical College, Thirunelveli 934 Ganesh Shankar 627 BC Service MS Ortho Government Medical College, Thriunelveli 974 Mithun Kumar CS 623.42 BC Service MS Ortho Government Medical College, Chengalpattu
14. The fact that the persons who secured lesser marks have been given allotment in the Government Medical College in M.S.(Orthopaedics) was not denied or disputed by the respondents 1 to 4 in their counter affidavit. It is also not in dispute that in the Counselling conducted on 20.05.2018, the petitioner opted to join in Raja Muthaiah Medical College and Hospital and joined the College on 21.05.2018. In the counter, it is specifically stated that only after First Counselling was over, it was brought to the notice of the Government that some of the areas, who were eligible to be classified as both A2 and A3 categories have not been found place and they were awarded incentive marks after reclassification of those areas. The petitioner was awarded incentive marks only after reclassification, but in the meanwhile, he has chosen Raja Muthaiah Medical College and Hospital and he joined on 21.05.2018 as stated above. It is also not in dispute that the petitioner was permitted to attend the Second Counselling on 28.05.2018 and in the second counselling, there was no vacancy found available in the Government Medical College.
15. In the light of the above facts, this Court is of the considered opinion that if any vacancy arises for M.S.(Orthopaedics) in Government Medical Colleges, the petitioner is entitled to be allotted the seat. Accordingly, the Writ Petition is ordered. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
13/08/2018
Speaking Order / Non Speaking Order
Index : Yes / No.
Internet : Yes / No.
r n s
To
1.The Principal Secretary to Government,
Government of Tamil Nadu,
Health and Family Welfare Department,
Secretariat, Fort St. George,
Chennai - 600 009.
2.The Director of Medical Education,
Kilpauk, Chennai - 600 010.
3.The Secretary,
Selection Committee,
The Directorate of Medical Education,
Kilpauk, Chennai - 600 010.
4.The Joint Director Health Services,
Tirunelveli District.
5.The Secretary,
Medical Council of India,
Pocket-14, Sector-8,
Dwarkha Phase-I,
New Delhi - 110 077.
K.KALYANASUNDARAM, J.
r n s
W.P.No.13510 of 2018 &
W.M.P.No.15915 of 2018
13/08/2018