Kerala High Court
Unknown vs By Advs.Sri.T.T.Muhamood on 10 April, 2018
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940
WP(C).No. 14371 of 2018
PETITIONER(S)
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DR. ARATHY MENON.,
AGED 40 YEARS, W/O. DR. K.R.RADHAKRISHNAN, JUNIOR
CONSULTANT (O & G), TALUK HQ HOSPITAL, PULINKUNNU,
ALAPPUZHA - 688 504.
BY ADVS.SRI.T.T.MUHAMOOD
SRI.V.E.ABDUL GAFOOR
SRI.A.MOHAMMED SAVAD
SRI.C.Y.VINOD KUMAR
SRI.JAYENDRAN KOCHOTH
SRI.BABU JOSEPH PYNADATH
RESPONDENT(S):
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1. THE STATE OF KERALA,
REP.BY ITS SECRETARY TO GOVERNMENT, HEALTH & FAMILY
WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. COMMISSIONER FOR ENTRANCE EXAMINATION,
5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
3. DIRECTOR OF HEALTH SERVICES,
THIRUVANANTHAPURAM - 695 011.
4. DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM - 695 011.
BY ADV. SRI.V.MANU, SR. GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TS
WP(C).No. 14371 of 2018 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 10.04.2018
ISSUED BY THE SUPERINTENDENT, W & C HOSPITAL,
ALAPPUZHA.
EXHIBIT P1(A) TRUE COPY OF THE DOCUMENT CERTIFYING SERVICE
DETAILS OF THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 09.03.2018,
SHOWING THE NEET PG RANK OF THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF PROSPECTUS
FOR ADMISSION TO POST GRADUATE DEGREE/DIPLOMA
COURSE 2018-19.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF KERALA
STATE MERIT LIST FOR ADMISSION TO PG MEDICAL
COURSE 2018 ISSUED BY THE COMMISSIONER FOR
ENTRANCE EXAMINATION, KERALA.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF PROSPECTUS
FOR ADMISSION TO MEDICAL POST GRADUATE
DEGREE/DIPLOMA COURSE 2016.
EXHIBIT P6 TRUE COPY OF THE G.O.(RT) NO. 1218/2018/H & FWD
DATED 12.04.2018.
EXHIBIT P7 TRUE COPY OF THE COVERING LETTER NO. A1-4030(1)/18
DATED 12.03.2018 SENT BY THE DISTRICT MEDICAL
OFFICER (HEALTH) IN CHARGE ALAPPUZHA.
EXHIBIT P8 TRUE COPY OF THE DETAILS OF MEDICAL OFFICERS,
SHOWING THE RURAL AREA SERVICE RECKONED BY
THE 3RD RESPONDENT.
RESPONDENT(S)'EXHIBITS - NIL
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/TRUE COPY/
PS TO JUDGE
TS
01.06.2018
SHAJI P. CHALY, J.
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W.P.(C) No.14371 of 2018
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Dated this the 30th day of May, 2018
JUDGMENT
This writ petition is filed by the petitioner seeking direction to the respondents to give appropriate rank to the petitioner in the state-wise merit list to Post Graduate Medical Degree/Diploma courses, 2018, granting incentive marks reckoning the rural area service including service as casualty medical officer in Women and Children Hospital, Alappuzha from 11.12.2007 to 18.09.2010. Material facts for the disposal of the writ petition are as follows:
2. Petitioner is working as Junior Consultant (O & G), Taluk Headquarters Hospital, Pulinkunnu in Alappuzha District.
Petitioner appeared for National Eligibility-cum-Entrance Test (NEET) for selection of candidates for admission to Post Graduate Degree/Diploma Medical courses, 2018 and she was placed in rank No.8609 in All India Level merit list. In the State level merit list, petitioner is placed in rank No.1186. W.P.(C) No.14371 of 2018 2
3. According to the petitioner, being a Government Medical Officer under the Health Service Department, she is to be considered against Health Service Quota, provided she has worked 3 years in difficult remote rural area or rural area. At the time of issuing notification for NEET and at the time of issuance of Ext.P3 Prospectus, the medical officers worked in rural area were not entitled for incentive. The said incentive was re-introduced only by issuance of amendment to the Regulations of Medical Council of India by notification dated 05.04.2018. The State Government had categorized service of casualty medical officer as rural area service. It is also the case of the petitioner that, several officers were given incentive/weightage while determining their merit reckoning the casualty service as rural area service.
4. However, petitioner has not been granted incentive for rural area service considering her service as casualty medical officer in the Women and Children Hospital, Alappuzha from 11.12.2007 to 18.09.2010. If the casualty service of 2 years, 9 months and 7 days is reckoned along with the service in Pulinkunnu Hospital, the total rural area service will become 5 years, 5 months and 15 days entitling the petitioner for W.P.(C) No.14371 of 2018 3 incentive of 151 marks. It is the case of the petitioner that, the casualty service rendered by the petitioner was not taken into account, and therefore, the rank of the petitioner assessed by the respondents is not in accordance with the correct procedure adopted in the Prospectus.
5. A counter affidavit is filed by the 3rd respondent, wherein, it is submitted that, the case projected by the petitioner is dependent on Clause 7.1.3 of Ext.P5 Prospectus pertaining to the Admission to Medical PG Degree/Diploma Courses, 2016. So also, petitioner places reliance on Sec.6 of the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 [Act 29 of 2008]. The Act 29 of 2008, particularly Sec.5(4) was challenged before a Division Bench of this Court in 'Mohammed Riaz K.M. (Dr.) and others v. State of Kerala and others' [2011 KHC 275 :
2011 (2) KLT 294]. This Court held that the State could not make a law doing away with the requirement of in-service candidates to participate in the common entrance test for admission to PG Medical Courses and obtaining the minimum eligibility requirement prescribed by the Medical Council of India in the Regulations.W.P.(C) No.14371 of 2018 4
6. So also, it is submitted that, the proposition of law so laid down is upheld by the apex court in 'Sudhir N. and others v. State of Kerala and others' [(2015) 6 SCC 685]. Further, a Division Bench of this Court in 'Abhilash Kumar M.P. (Dr.) and others v. State of Kerala and others' [2015 KHC 428] held that, the State could not rely on Sec.6 of Act 29 of 2008 for giving weightage marks to in-service candidates serving in rural areas. The decision in 'Sudhir N. and others' (supra) was affirmed by the apex court in 'State of U.P. & Ors. v. Dr. Dinesh Singh Chauhan' [(2016) 9 SCC 749]. Therefore, according to the respondents, the reliance placed by the petitioner in the Prospectus of the year 2018 and the provisions of Act, 2008 cannot be sustained.
7. That apart, it is submitted that, as per the proviso to Regulation 9(4) of the Post Graduate Medical Education (Amendment) Regulations, 2018, it is for the State Government to notify the rural areas from time to time. In accordance with the amendment so made, Ext.P6 Government Order was issued, wherein, it is ordered that, all institutions outside the jurisdictional area of Municipalities and Corporations only will be included in the category of rural area. W.P.(C) No.14371 of 2018 5 As per Clause 7.1.3 of Ext.P5 Prospectus, b