Kerala High Court
Dr.Preetha Prabhakaran S vs State Of Kerala on 12 June, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938
WP(C).No. 3313 of 2017 (L)
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PETITIONERS:
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1. DR.PREETHA PRABHAKARAN S, LECTURER,
DEPARTMENT OF OBSTETRICS & GYNECOLOGY,
GOVERNMENT MEDICAL COLLEGE,
ERNAKULAM - 683 503.
2. DR.GREESHMA SUMANASAN, LECTURER,
DEPARTMENT OF GENERAL MEDICINE,
GOVERNMENT MEDICAL COLLEGE,
ERNAKULAM - 683 503.
3. DR. DHANYA D, LECTURER,
DEPARTMENT OF GENERAL MEDICINE,
GOVERNMENT MEDICAL COLLEGE,
ERNAKULAM - 683 503.
4. DR. SHABEENA BASHEER, LECTURER,
DEPARTMENT OF OPHTHALMOLOGY,
GOVERNMENT MEDICAL COLLEGE,
ERNAKULAM - 683 503.
5. DR. MANOJ ANTONY, LECTURER,
DEPARTMENT OF GENERAL SURGERY,
GOVERNMENT MEDICAL COLLEGE,
ERNAKULAM - 683 503.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
SRI.K.R.GANESH
RESPONDENTS:
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1. STATE OF KERALA, REPRESENTED BY
THE SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
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WP(C).No. 3313 of 2017 (L)
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2. THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION,
MEDICAL COLLEGE(P.O.),
THIRUVANANTHAPURAM - 695 011.
3. THE COMMISSIONER OF ENTRANCE EXAMINATIONS,
HOUSING BOARD BUILDINGS, SHANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
BY SENIOR GOVERNMENT PLEADER SRI.V.MANU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15-02-2017, THE COURT ON 08-03-2017 DELIVERED THE
FOLLOWING:
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WP(C).No. 3313 of 2017 (L)
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE M.B.B.S. CERTIFICATE OF
REGISTRATION OF THE 1ST PETITIONER.
EXHIBIT P2: TRUE COPY OF DGO CERTIFICATE OF THE
1ST PETITIONER.
EXHIBIT P3: TRUE COPY OF ORDER NO.E2-1394(8)/2007/CAPE/1948
DATED 12.6.2007 ISSUED BY THE DIRECTOR OF CO-OP.
ACADEMY OF PROFESSIONAL EDUCATION TO THE
1ST PETITIONER.
EXHIBIT P4: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE
2ND PETITIONER.
EXHIBIT P5: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E.
DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT.
MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO
THE 2ND PETITIONER.
EXHIBIT P6: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE
3RD PETITIONER.
EXHIBIT P7: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E.
DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT.
MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO
THE 3RD PETITIONER.
EXHIBIT P8: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE
4TH PETITIONER.
EXHIBIT P9: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E.
DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT.
MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO
THE 4TH PETITIONER.
EXHIBIT P10: TRUE COPY OF M.B.B.S. CERTIFICATE OF THE
5TH PETITIONER.
EXHIBIT P11: TRUE COPY OF ORDER NO.E1-5920/2014/G.M.C.E.
DATED 28.4.2016 ISSUED BY THE PRINCIPAL, GOVT.
MEDICAL COLLEGE, THIRUVANANTHAPURAM ISSUED TO
THE 5TH PETITIONER.
EXHIBIT P12: TRUE COPY OF MEDICAL COUNCIL OF INDIA
POSTGRADUATE MEDICAL EDUCATION REGULATIONS, 2000
ISSUED BY THE MEDICAL COUNCIL OF INDIA.
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WP(C).No. 3313 of 2017 (L)
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EXHIBIT P13: TRUE COPY OF KERALA MEDICAL OFFICERS' ADMISSION
TO POSTGRADUATE COURSES UNDER SERVICE QUOTA ACT,
2008 ISSUED BY THE GOVERNMENT OF KERALA.
EXHIBIT P14: TRUE COPY OF G.O.(RT)NO.809/2016/H&FWD
DATED 5.3.2016 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P15: TRUE COPY OF NOTIFICATION DATED 15.2.2000 ISSUED
BY THE MEDICAL COUNCIL OF INDIA.
EXHIBIT P16: PROSPECTUS ISSUED BY THE GOVERNMENT OF
MAHARASHTRA FOR MAKING ADMISSION TO MEDICAL
POSTGRADUATE COURSES FOR THE YEAR 2017.
EXHIBIT P17: TRUE COPY OF NOTIFICATION DATED 14.10.2016
ISSUED BY THE GOVERNMENT OF PUNJAB, DEPARTMENT
OF MEDICAL EDUCATION AND RESEARCH.
EXHIBIT P17(A): TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION
OF THE 1ST PETITIONER DOWNLOADED FROM THE
WEBSITE OF THE NATIONAL BOARD OF EXAMINATION.
EXHIBIT P18: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION
OF THE 2ND PETITIONER DOWNLOADED FROM THE
WEBSITE OF THE NATIONAL BOARD OF EXAMINATION.
EXHIBIT P19: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION
OF THE 3RD PETITIONER DOWNLOADED FROM THE
WEBSITE OF THE NATIONAL BOARD OF EXAMINATION.
EXHIBIT P20: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION
OF THE 4TH PETITIONER DOWNLOADED FROM THE
WEBSITE OF THE NATIONAL BOARD OF EXAMINATION.
EXHIBIT P21: TRUE COPY OF RESULT OF THE ENTRANCE EXAMINATION
OF THE 5TH PETITIONER DOWNLOADED FROM THE
WEBSITE OF THE NATIONAL BOARD OF EXAMINATION.
EXHIBIT P22: TRUE COPY OF REPRESENTATION SUBMITTED BY THE
PETITIONERS BEFORE THE GOVERNMENT.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
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SHAJI P. CHALY, J.
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W.P.(C). No. 3313 of 2017
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Dated this the 8th day of March, 2017
JUDGMENT
The reliefs sought for by the petitioners in this writ petition is a direction to the 1st respondent to consider and pass orders on Ext.P22 representation submitted by the petitioners before publishing the prospectus for making admission to Postgraduate Medical Courses for the academic year 2017 after affording an opportunity of hearing to the petitioner and to issue a writ of mandamus directing 1 st respondent to enforce the provisions contained in Act 29 of 2008 while making admissions for Medical Postgraduate course for the academic year 2017.
2. Material facts for the disposal of the writ petition are as follows; petitioners are in-service candidates working in the Medical Education Services. Exts.P1 to P11 are the registration certificates, degree certificates and appointment orders issued to the petitioners respectively. Presently all the petitioners are functioning in the respective posts in the W.P.(C). No.3313 of 2017. 2 Government Medical College, Ernakulam. The Medical Counsel of India has issued Regulations viz., Medical Council of India Post Graduate Medical Education Regulations, 2000, (hereinafter called Regulations 2000) by virtue of the powers conferred under Section 20 r/w. Section 33 of the Medical Council of India Act, 1956 laying down the procedure for making admission to postgraduate medical degree courses, evident from Ext.P12. Above Regulation was the subject matter of various disputes before this court and the Apex Court. According to the petitioners, the Apex Court in the decision reported in Harish Verma v. Ajay Srivastava [(2003)8 SCC 69] has considered the question whether Medical Officers, who are employed in the Medical Education and Health Services Department of the Government should clear the entrance examination and secure the minimum marks as laid down in the Regulations issued by the Medical Council of India seeking admission to Postgraduate Medical Courses in the quota reserved for in-service candidates and has held that even such in-service candidates should appear W.P.(C). No.3313 of 2017. 3 for the entrance examination and secure the minimum marks as laid down in the Medical Council of India Regulation for seeking admission to post graduate medial course in the quota earmarked for in-service candidates.
3. Faced with the above situation and since the in-service candidates could not be provided with quota to P.G. Medical course, the 1st respondent framed the Kerala Medical Officers admission to post graduate courses to In-service Quota Act, 2008 (Act 29 of 2008) evident from Ext.P13. In Act 29 of 2008, apart from providing a quota for Medical Officers working in the Medical Education Services and the Health Department in different specialties, Section 5 provides that candidates shall be given admission to different courses in accordance with their seniority in the State Service. Since Act 29 of 2008 was directly against Ext.P12 MCI Regulation in as much as that, the said Regulation did not provide for any quota for PG Medical course for in-service candidates. Act 29 of 2008 as such could not be implemented because of the stipulations contained under Article 254 of the Constitution of W.P.(C). No.3313 of 2017. 4 India being inconsistent with the MCI Regulations issued by the Central Government. Hence in order to validate Act 29 of 2008, 1st respondent obtained the assent of the President for Act 29 of 2008, which was received on 16.10.2008. Once the said Act got the assent of the President, even though it was inconsistent with MCI Regulations, it became valid in accordance with the provisions contained under Article 254(2) of the Constitution of India. Thus for Post Graduate Medical Courses in the Kerala State in accordance with the provisions contained in the Act 29 of 2008, the Government of Kerala provided a quota for in-service candidates. Seats for Post Graduate Medical Courses was reserved for in-service candidates separately under the heads 'Medical Education Service Quota' and 'Health Service Quota'. However, the provisions contained in Section 5 of Act 29 of 2008 to the extent it provides that, from among those, in-service candidates, admissions shall be made in accordance with the service seniority was struck down by the Apex Court in the decision in Sudhir.N. and others v. State of Kerala and W.P.(C). No.3313 of 2017. 5 others [(2015) 6 SCC 685]. However, Act 29 of 2008 was never struck down and the same remain valid for providing reservation for in-service candidates. It is also submitted that, the Medical Officers in the Medical College, Ernakulam was also given admission for Postgraduate medical courses in the quota reserved for in-service candidates as per Government Order dated 5.3.2016, evident from Ext.P14.
4. The Medical Council of India amended the Regulations as per notification dated 10.08.2000, evident from Ext.P15. Regulation 9 of Ext.P15 lays down the procedure for admission to postgraduate medical courses. In accordance with the same only candidates who clear the entrance examination obtaining minimum 50% marks are entitled to seek admission for postgraduate medical courses. No reservation for in-service candidates is provided in Ext.P15 Regulations. The only reservation that is provided under sub- clause (vii) of regulation 9 of Ext.P15 Regulation is admission to postgraduate diploma courses, apart from caste and disability quota etc. etc. Therefore, there is no prohibition W.P.(C). No.3313 of 2017. 6 created for providing reservation for in-service candidates, is the contention. Thus, according to the learned counsel for petitioners, it is clear that Ext.P15 Regulations only prescribed a unified entrance test at national level viz., National Eligibility cum Entrance Test (NEET). No other substantive change is brought about from the Regulations issued in the year 2000. It is also stated that, once an act has received the assent of the President of India under Article 254 of the Constitution of India to insulate the same from being rendered void being inconsistent with any provisions of Central Act, any further amendment made to the Central Act as long as it relates only to procedural aspects will not render the former Act invalid and a further assent from the President is not required for implementing the amended Act. Therefore, it is clear, Act 29 of 2008, which was promulgated by the State of Kerala in order to provide quota for in-service candidates reserving seats for medical postgraduate courses having obtained the assent of the President, does not require further assent of the President after the promulgation of W.P.(C). No.3313 of 2017. 7 Ext.P15 Regulations and Act 29 of 2008 is valid for all purposes to the extent it provides for reservation of seats for in-service candidates for postgraduate medical courses. According to the petitioner, the decision rendered by the Apex Court in Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others [AIR 2016 SC 2601] considered the validity of the executive order dated 28.2.2014 issued by the State of Madhya Pradesh, providing that, in-service candidates seeking admission to postgraduate medical courses in the reserved quota, has to work for three years in rural or any difficult areas and held that after the promulgation of Ext.P15 Regulations by the MCI, no reservation for postgraduate medical courses except for postgraduate diploma courses can be provided for in-service candidates. It is the case of the petitioners that, the above decision of the Apex Court has not touched the validity of Act 29 of 2008 promulgated by the State Government, which has already received the assent of the President. According to the petitioners, the ratio of the W.P.(C). No.3313 of 2017. 8 judgment rendered by the Apex Court will not affect the validity of Act 29 of 2008 since in the said judgment, the question considered was with respect to the Government Order vis-a-vis Regulations 2000. Petitioner has also produced Ext.P16 and Ext.P17 prospectus issued by the Government of Maharashtra and the Government of Punjab to canvas the proposition that, seats are reserved for in-service candidates of Public Health Department and ESIS Department. The petitioners herein appeared for the NEET examination conducted by the National Board of Examination pursuant to Ext.P6 Regulations. All the petitioners have secured more than 50% marks in the entrance examination, evident from Exts.P17(a), P(18), P19, P20 and P21 respectively. Petitioners have cleared the NEET examination and therefore, entitled to be admitted for postgraduate medical courses in the quota reserved for in-service candidates.
5. However, petitioners came to know, 1 st respondent is taking steps to issue prospectus for making admissions to W.P.(C). No.3313 of 2017. 9 postgraduate medical courses for the academic year 2016- 2017 from among other candidates, who have passed the NEET examination. But it is understood that, 1 st respondent under a mistaken impression that after the decision of the Apex Court in State of Uttar Pradesh and others v. Dr.Dinesh Singh Chauhan [AIR 2016 SC 3841 = (2016) 9 SCC 749] that, no reservation for in-service candidates can be provided for postgraduate medical courses and therefore, in the prospectus proposed to be issued, the seats are sought to be filled up without providing for any reservation for in- service candidates virtually overlooking the provisions contained under Act 29 of 2008. Therefore, petitioner has submitted Ext.P22 representation before the 1st respondent seeking to make sufficient provisions to protect the interest of in-service candidates in accordance with the provisions of Act 29 of 2008. These are the background facts projected by the petitioners to secure the reliefs sought for in the writ petition.
6. Heard learned counsel for the petitioners, learned Senior Government Pleader and perused the documents on W.P.(C). No.3313 of 2017. 10 record and the pleadings put forth by the petitioner.
7. The predominant contentions advanced by learned counsel for petitioners is that, in view of the provisions contained under Act 29 of 2008 promulgated by the 1 st respondent, evident from Ext.P13 the in-service candidates are entitled to secure reservation. Section 5 of the said Act provides procedure for selection by which the Government is empowered to set apart seats not exceeding 40% of the total seats available to State quota in an academic year for selection of Medical Officers under service quota considering their service under the Government for admission to Postgraduate Medical courses in the Medical Colleges of the State in a manner as may be prescribed. It also provides that the academic qualification for admission to the Postgraduate course shall be M.B.B.S. Degree with minimum 50% marks and the other qualifications shall be, such as may be prescribed. That apart it is contended, Act 29 of 2008 received the assent of the President on 16.10.2008 and therefore, by virtue of Article 254(2), the admission in the W.P.(C). No.3313 of 2017. 11 State of Kerala to the Postgraduate Medical courses is guided by the said provision and the petitioners are entitled as of right to get reservation. Article 254 of the Constitution of India deals with inconsistency between the laws made by the legislatures of a State. Clause (1) of Article 254 of the Constitution of India provides that, if any provision of law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by the Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Clause (2) of Article 254 of the Constitution of India provides that, where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the W.P.(C). No.3313 of 2017. 12 provisions of an earlier law made by Parliament or an existing law with respect to the matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Therefore, relying upon clause (2)of Article 254 of the Constitution of India, learned counsel for petitioners contended that, the provisions of Act 29 of 2008 will prevail over MCI Postgraduate Medical Education Regulations, 2000, as amended from time to time within the State of Kerala. According to the learned counsel, as per Entry 66 of List II of Schedule 7 of the Constitution of India, Government is vested with power for co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions whereas as per Entry 25 of List III of Schedule 7 i.e.,the Concurrent List, State is also vested with power to legislate on education including technical education, medical education and universities subject to the provisions of entries 63, 64, 65 and 66 of List I, vocational and technical training of labour. Therefore, according to the learned counsel for petitioners, W.P.(C). No.3313 of 2017. 13 Act 29 of 2008 is promulgated by the State exercising the powers so conferred under the Concurrent List. So far as Regulations 2000 is concerned, it deals only with the co- ordination and determination of standards in institutions for higher education etc. etc. and therefore, the reservation made by the State Government under Act 29 of 2008 will not be guided by Entry 66 of the Union List.
8. In my considered opinion a survey of regulation 9 of Regulations 2000, which deals with criteria for selection of postgraduate students would be worthwhile. Clause (1) of regulation 9 substituted by notification dated 8.10.2012 w.e.f. 23.10.2012 prescribes only a single eligibility cum-entrance examination namely, National Eligibility-cum-Entrance Test for admission to Postgraduate Medical Courses in each academic year. The superintendence, direction and control of National Eligibility-cum-Entrance Test shall vest with National Board of Examination under overall supervision of the Ministry of Health and Family, Government of India. Clause
(ii) deals with reservation of seats to candidates with W.P.(C). No.3313 of 2017. 14 locomotory disability of lower limbs between 50% to 70%. Clause (iii) deals with the eligibility criteria, which prescribes, in order to be eligible for admission to any Postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum marks at 50 th percentile in National Eligibility-cum-Entrance Test for Postgraduate courses held for the said academic year. However, in respect of candidates belonging to scheduled castes, scheduled tribes, other backward classes, the minimum percentage marks shall be 40 th percentile and in respect of candidates as provided in clause 9(ii) above with locomotory disability of lower limbs, the minimum marks shall be at 45 th percentile (percentile introduced w.e.f.27.2.2012). Clause (iv) deals with reservation of seats in Medical Colleges/Institutions for respective categories as per applicable laws prevailing in States/ Union Territories. An all India merit list as well as State wide merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and the candidates shall be W.P.(C). No.3313 of 2017. 15 admitted Postgraduate courses from the said merit list only. The proviso thereto reads that, in determining the merit of candidates, who are in service of Government/public authority, weightage in the marks may be given by the Government/competent authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult area upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult areas shall be as defined by the State Government /competent authority from time to time. Among other stipulations, clause (vii) states that, 50% of the seats in Postgraduate diploma courses shall be reserved for Medical Officers in the Medical Services, who have served for at least three years in remote and/or difficult areas. But after acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult area as defined by State Government or competent authority from time to time. Evaluation of the above said provisions would be enough to decide the issue raised by the petitioners in the writ petition. W.P.(C). No.3313 of 2017. 16
9. According to the learned counsel for petitioners, regulation 9 is not providing any sort of reservation to the in- service candidates within the State, and therefore, the provisions contained under Act 29 of 2008 has no manner of repugnancy over the aforementioned provisions of Regulations 2000. It is thus the contention of the learned counsel, the State Government is duty bound to provide necessary quota for the in-service candidates in the prospectus.
10. According to the learned counsel, in Sudhir.N. and others v. State of Kerala and others referred to supra, the Apex Court had only occasion to consider the reservation made to in-service candidates, on the basis of seniority by and between the in-service candidates, and the Apex Court never considered the issue taking note of the provisions contained under Act 29 of 2008, enabling the State Government to make reservation for in-service candidates. However, in my considered opinion, the Apex Court had occasion to consider the provisions of Act 29 of 2008 vis-a-vis the provisions of Regulations 2000 and in paragraphs 7 & 8 it is held as follows: W.P.(C). No.3313 of 2017. 17
b