Kerala High Court
Dr. Deepak Das vs The Secretary To Government on 23 June, 2011
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11141 of 2011(P)
1. DR. DEEPAK DAS, ASST.SURGEON,
... Petitioner
Vs
1. THE SECRETARY TO GOVERNMENT,
... Respondent
2. THE DIRECTOR OF MEDICAL EDUCATION,
3. THE DIRECTOR OF HEALTH SERVICES,
4. THE COMMISSIONER FOR ENTRANCE
For Petitioner :SRI.SANTHOSH MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :23/06/2011
O R D E R
P.R.RAMACHANDRA MENON, J
.......................................................
W.P.(C)s.11141, 16547, 15804, 15993, 16156 and 16446/2011
11465, 14403, 15997, 16394, 13603, 14427, 14436, 14653,
15791, 16889 of 2011
..............................................
Dated this the 23rd day of June, 2011
JUDGMENT
All the writ petitioners herein are working either in the Health Service Department or the Insurance Service Department (or the Medical Education Department), as the case may be, and they are aspirants for admission to the Medical P.G Course in respect of the 'Service Quota', separately earmarked to the extent of 40% of the total vacancies, as provided under the Kerala Medical Officers' Admission to Post Graduate Courses, under Service Quota Act, 2008.
2. Considering the nature of the challenge/contentions raised, these writ petitions can be broadly grouped into two different categories. The first group bearing Writ Petition Nos.11141/201, 16547/2011, 15804/2011, 15993/2011, 16156/2011 and 16446/2011 pertain to the petitioners who are working in the Health Services Department (except the petitioner in W.P.(C).15804/2011, where it is Insurance Service) and are having more than the prescribed 'four years' of service W.P.(C)s.11141/11 & Connected Cases 2 (except in the case of petitioner in W.P.(C).16156/2011) and are qualified in the Common Entrance Examination securing the minimum qualifying marks. Petitioner in W.P.(C).11141/2011 belongs to a Scheduled Caste; while the others belong to the 'Socially Educational Backward Community' (SEBC in short). Even though the minimum qualifying mark in the Entrance Examination in the general category is 50%, in respect of the reserved category as above, it is 40% and all the petitioners stand qualified in the test.
3. As per the relevant norms, the admission to the Medical P.G course is strictly based on the seniority and it was stipulated that minimum of 'four years' service was necessary in the case of Health Services Department; while 'one year' service was enough for the Medical Education/Insurance Department. As per Note 1 to Clause VIII of the prospectus, it was categorically stipulated that, it was not necessary for the 'Service Quota' candidates to attach certificates/documents mentioned in respect of the caste/community/income as stipulated under sub clause iv to x of clause VIII(f) of the said prospectus and as such, no such certificates were forwarded at the time of submitting the application. Some of the candidates did not make any W.P.(C)s.11141/11 & Connected Cases 3 application for the 'Service Quota' and they participated and came out successful in the Common Entrance Test under the General Quota.
4. As per the guidelines issued by the Medical Council of India, in view of the different streams of qualifying examinations, it was necessary to have a Common Entrance Test and a question arose whether the 'Service Quota' candidates had to participate in the Common Entrance Test - which however, was not prescribed in the prospectus, but for the seniority. This clause of the prospectus was subjected to challenge before this Court and after hearing all concerned, the law was declared by a Division Bench of this Court as per the decision reported in Mohammed Riaz v. State of Kerala (2011 (2) KLT 294), whereby it was held that, even in the case of 'Service Quota', it was essential to have come through the Entrance Examination.
5. In the changed circumstances, the concerned petitioners have approached this Court pointing out that, since they were not required to forward the community/income certificates earlier, as stipulated in Note 1 of clause VIII(f) as aforesaid, they should be given an opportunity to have the same submitted, W.P.(C)s.11141/11 & Connected Cases 4 enabling them to be considered for the purpose of selection. It is contended by some of the petitioners that the certificates procured subsequently were not accepted by the respondents, in view of the expiry of time; while some other petitioners have got a contention that the time provided to procure and produce the certificates was totally inadequate.
6. When similar issue came up for consideration before this Court in W.P.(C).15883/2011, after considering the particular facts and circumstances, this Court arrived at a finding that the petitioner therein was liable to be permitted to participate in the selection process, which was ordered accordingly and the writ petition was disposed of as per judgment dated 17.6.2011 directing that the candidature of the said petitioner to be considered if there were vacancies in respect of the 'Service Quota', before finalization of the selection process. This Court finds that the said judgment is applicable to these cases as well.
7. Coming to the second group of cases (W.P.(C) s.11465/2011, 14403/2011, 15997/2011, 16394/2011, 13603/2011, 14427/2011, 14436/2011, 14653/2011, 15791/2011 and 16889/2011), all the writ petitioners belong to the Health W.P.(C)s.11141/11 & Connected Cases 5 Services Department, except the petitioners in W.P.(C). 14403/2011, who are in the Medical Insurance Service. The petitioners herein who belong to the general category participated in the Common Entrance Test and have secured the minimum qualifying marks of 50% and above, though some of the petitioners like those in W.P.(C)s.14403/2011, 13603/2011 and 14427/2011 could participate in the supplementary examination conducted on 29.5.2011 (pursuant to the orders passed by the Apex Court on challenging the verdict passed by the Division Bench in Mohammed Riaz v. State of Kerala (2011 (2) KLT 294)) only as per the relevant interim orders passed by this Court. All the petitioners in this group are having less than 'four years' of service (except the third petitioner in W.P.(C).15791/2011) in the Health Services Department. Their contention is that, in view of the changed circumstances, involving the necessity to come out successful in the Common Entrance Test for the 'Service Quota' candidates as well, there is absolutely no rhyme or reason for restricting admission to the 'Service Quota' candidates prescribing the minimum length of service.
8. All the above matters were heard in detail. During the W.P.(C)s.11141/11 & Connected Cases 6 course of hearing, the learned Senior Government Pleader brought it to the notice of this Court, that the sequence of events leading to the consequences resulted and likely to result were analyzed meticulously by the Government, when it was found that there were many advantages to the Health Care System of the Government, if the prospectus condition regarding the minimum qualifying service was waived. It was observed that the candidates will enter into a contract to serve the Government for a fixed number of years which will ensure that 'Specialists' Service' would be available in the Government sector; while there was acute shortage of 'Specialists', as on date, in the Health Service Department.
9. Considering the above aspects, the willingness of the Government to allow the relaxation of the eligibility condition of minimum qualifying service as stipulated in Medical P.G prospectus of the year 2001, subject to certain conditions, was conveyed to the learned Advocate General as per the letter No. 21094/S3/2010/H&FWD dated 21.6.2011 of the Secretary to the Government, Health and Family Welfare (S) department, a copy of which has been placed for consideration of this Court, which contains the conditions as given below:-
W.P.(C)s.11141/11 & Connected Cases 7 (1). The candidates should have a minimum of one year service in Health Services, Medical Education Services and Insurance Medical Services Department.
(2). The candidates shall execute a bond to serve Government in respective Department for five years and in addition a period equal to the difference between number of years completed in service and the years required to reach the eligibility criteria.
(3). Since this is in relaxation of the existing Prospectus conditions, admissions already made should not be interfered with.
10. The learned counsel appearing for the petitioners in all these cases made an open declaration before this Court that the conditions as aforesaid are very much acceptable to the petitioners and that their candidature can be ordered to be considered accordingly.
In the above facts and circumstances, these writ petitions are disposed of, directing the respondents to consider the petitioners for admission to the Medical P.G Courses concerned, subject to production of requisite certificates and satisfying W.P.(C)s.11141/11 & Connected Cases 8 other requirements if any, in accordance with law, along with the other eligible candidates (who have come out successful in the Common Entrance Examination held earlier and also in the subsequent examination conducted on 29.5.2011, pursuant to the orders of the Apex Court) in respect of the available vacancies earmarked for 'Service Quota'. It is made clear that the admission already made need not be disturbed in the above exercise.
P.R.RAMACHANDRA MENON, Judge mrcs