IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).No. 9925 of 2010(M) --------------------------------------- PETITIONER(S): ----------------------- DR.RONY LOUIS, LOUI DALE, MUNDAKKAL WEST, KOLLAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (S) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER, IDUKKI. 4. THE COMMISSIONER OF ENTRANCE EXAMINATIONS THIRUVANANTHAPURAM. R1 TO R4 BY BY GOVT. PLEADER MR.T.B. HOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON 30/06/2010 DELIVERED THE FOLLOWING: WP(C) NO. 9925/2010-M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.A1-9535/07/DMO(II) IDUKKI/DATED12/12/2007 ISSUED BY THE 2ND RESPONDENT EXT.P2: COPY OF THE G.O.(MS)NO.533/2008/H &FWD DATED 07/10/2008. EXT.P3: COPY OF THE ORDER NO.A1-10989/08/DMO(II) IDUKKI DATED 01/11/2008. EXT.P4: COPY OF THE ORDER NO.1227/08/DHI DATED 17/11/2008. EXT.P5: COPY OF THE ORDER NO.1303/08/DHI DATED 26/11/2008. EXT.P6: COPY OF THE ORDER NO.264/08 DATED 03/12/2008. EXT.P7: COPY OF THE CERTIFICATE DATED 22/12/2008 EXT.P8: COPY OF THE CERTIFICATE DATED 05/01/2009. EXT.P9: COPY OF THE CERTIFICATE DATED 02/02/2009. EXT.P10: COPY OF THE RELEVANT PAGES OF THE PROSPECTUS. EXT.P11: COPY OF THE GO(MS)NO.13/2010 H&FWD DATED 14/01/2010. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P(C.)No.9925 of 2010-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of June, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The petitioner was posted as per Ext.P1 to the Primary Health Centre, Mariyapuram on 12.12.2007, under the National Rural Health Mission Compulsory Rural Service scheme for doctors in terms of bond executed while joining the MBBS course in a Government Medical College. In terms of that bond, he was bound to serve in rural areas for a period of three years, if required by Government. On 1.11.2008, he was transferred to District Hospital, Idukki following a request of the Superintendent, District Hospital, Idukki as WPC9925/2010 -: 2 :- per Ext.P3, wherein it was also noted that the service of a doctor posted through Public Service Commission is available at Primary Health Centre, Mariyapuram. It appears that on 4.11.2008, the petitioner started serving at the District Hospital, Idukki and he was deputed for Sabarimala duty from 15.11.2008 to 21.11.2008 as per Ext.P4. Taking the aforesaid into consideration, the Chief Executive Officer, Arogyakeralam had certified that the petitioner satisfactorily completed his compulsory rural service from 21.12.2007 to 21.12.2008, of which the period from 21.12.2007 to 3.11.2008 was at Primary Health Centre, Mariyapuram and the period from 4.11.2008 to 21.12.2008 was at the District Hospital, Idukki. 2.On the aforesaid facts, the petitioner claims that he was eligible for 10% weightage for one year of service in Remote Difficult Rural Area in terms of Clause IX(a)(ii) of Ext.P10 Prospectus for Admission to Medical Post-Graduate WPC9925/2010 -: 3 :- Degree/Diploma Courses - 2010. Going by Ext.P11 Annexure to GO(MS)No.13/10/H&FWD dated 14.1.2010, Primary Health Centre, Mariyapuram is treated as Remote Difficult Rural Area eligible for weightage in terms of the aforesaid provision in the prospectus. 3.However, as already noted, the petitioner, as certified by Ext.P9, had worked only from 21.12.2007 to 3.11.2008 in Primary Health Centre, Mariyapuram and the period from 4.11.2008 to 21.12.2008 was spent serving at the District Hospital, Idukki or on deputation to Sabarimala. According to the petitioner, the period from 21.12.2007 to 3.11.2008 spent at the Primary Health Centre, Mariyapuram covers 317 out of 365 days and he was shifted to District Hospital, Idukki for the remaining period of 48 days, owing to exigencies of the Department, on the request of the Superintendent of the District Hospital and the transfer was not on the petitioner's request or choice. He, therefore, says that when WPC9925/2010 -: 4 :- his transfer from Primary Health Centre, Mariyapuram to District Hospital, Idukki was made in exigency of service, that should not be utilised to penalise and deprive him of his preferential admission to the Post-Graduate course with the facility of 10% weightage. 4.First respondent has filed counter affidavit stating that the postings of doctors as part of compulsory rural service are made on the basis of allotment by the State Rural Health Mission Director and the petitioner was allotted to Idukki district for service. It is the first respondent's case that the petitioner was posted in Primary Health Centre, Mariyapuram by the DMO since there was scarcity of doctor in that station and that the petitioner had done rural service in that PHC from 21.12.2007 to 3.11.2008 and had availed 3 days' casual leave during that period. It is contended that to claim the weightage, the candidate should have completed the prescribed period of service as on the date WPC9925/2010 -: 5 :- of notification inviting application for the course, however, admittedly, the petitioner did not have the prescribed period of one year compulsory rural service to claim the weightage. The first respondent further contends that though the petitioner was initially posted at Primary Health Centre, Mariyapuram, he was subsequently transferred to District Hospital, Idukki when a doctor appointed through PSC took charge at PHC, Mariyapuram. It is pleaded that postings and transfers of doctors are done on the basis of requirements of the Department and in public interest and the transfer of the petitioner to Idukki District Hospital was to meet the requirements in that hospital and to give more effective service to the patients there. It is contended that the petitioner has no right to claim the benefit of weightage as that could be extended only to those candidates who have completed one year service in remote/difficult rural areas. WPC9925/2010 -: 6 :- 5.We may also notice that the first respondent has further specifically pleaded that on 25.3.2010, this Court had, through an interim order in a batch of cases, ordered that those who had served or are serving under bonded obligation are not entitled to get weightage and that in view of the said interim order also, the petitioner cannot be given any weightage on account of his service in terms of the bond. 6. In a batch of writ petitions, W.P.(C).1014/2010 and connected cases, raising the question as to the sustainability of some of the provisions of the Kerala Medical Officers' Admission to Post Graduate Courses under Service Quota Act, 2008 and the provisions in the Prospectus governing the grant of weightage in the open merit quota to those who had served the Government and left, this Court after adverting to and considering the relevant provisions of the Act, issued a detailed order, though interim, stating that the very concept of weightage has been evolved to extend WPC9925/2010 -: 7 :- the benefit of admission to those who are serving under the Government, especially in rural/difficult areas. It was accordingly directed by this Court on 25.3.2010 that while granting weightage in the general merit quota, those persons who are actually in service alone shall be given weightage and that those who have served or are serving under bonded obligation, shall not be entitled to get weightage. 7. On the face of the aforesaid order issued to regulate the PG Medical admissions for the current year, the process of admission is ending, in as much as the State Government has time till 30th of June to make the admissions. We note this because the effect of the aforesaid interim order has already impacted the selection process and the admissions, and all the students who have been admitted following the aforesaid interim order are not before us while the petitioner seeks a direction which will run contrary to the contents of the aforesaid interim order. WPC9925/2010 -: 8 :- 8.Be that as it may, even assuming that the said interim order is subject to the final hearing of those writ petitions, the quality of the claim of the petitioner for tagging along the service rendered in the District Hospital, Idukki as part of Remote Difficult Rural Area Service cannot be countenanced. This is for the simple reason that District Hospital, Idukki is not identified as a Remote Difficult Rural Area by the Government, even going by the case of the petitioner. The Government has the prerogative to identify and enlist the hospitals or centres which will be treated as Difficult Rural Areas and in doing so, while the Primary Health Centre, Mariyapuram is treated as a Difficult Rural Area, the District Hospital, Idukki is not treated as one. The bond executed by the petitioner is to serve in such place as the Government may decide. This includes the liability to be transferred and posted to different hospitals. One does not have the entitlement to make the choice to go to a place WPC9925/2010 -: 9 :- of his own volition and stick on at that end for the entire period of service in terms of the bond. 9.Even according to the petitioner, he was transferred from Primary Health Centre, Mariyapuram to District Hospital, Idukki in the exigencies of service and because the DMO and the Superintendent of the District Hospital, Idukki wanted additional personnel in the District Hospital. The petitioner cannot claim a preferential claim to be permitted to continue in a particular station merely for the purpose of claiming a benefit on the basis of weightage for the purpose of admission. At its best, the petitioner's complaint can be treated as only about an incident or accident of service which is not alien to the realm of services. However, such incidents or accidents would not give rise to a legal right to be remedied as if a wrong has been committed by the Government in transferring the petitioner from the Primary Health Centre, WPC9925/2010 -: 10 :- Mariyapuram to District Hospital, Idukki. 10.There is yet another aspect of the matter. We are conscious of the fact that the State Government supports the view that those candidates who are not Government servants also, would be entitled to weightage. That contention of the State, as projected by the learned Advocate General, did not appeal to the Bench while the aforesaid interim order was passed. Added to this, we need to remember that the bond that the petitioner had executed is for compulsory rural service which is provided for, to balance the requirement of the State in the sector of health services and the need of a student to undergo medical education involving expenditure of huge sums of public money. The students who secure admission in the Government Medical Colleges study at the expense of the Public exchequer and Government spends huge sums of public money for the education of all those students irrespective of the fact whether they WPC9925/2010 -: 11 :- come from All India quota or State quota. The bond for compulsory Government service, including compulsory rural service, is essentially to support the mechanism of the Government running the medical service system as also providing medical education at exceptionally subsidized expenditure. To say that such service, even if it is in remote/difficult rural area, should be treated as such service which should give weightage to the candidate in the competition for admission to post graduate courses, would be to provide a double benefit. It appears so. However, we do not wish to express finally on that, having regard to the pendency of the other writ petitions challenging the provisions of the aforesaid Act and the prospectus. At any rate, we are clear in our mind that the petitioner who, for whatever be the reason, did not have one year of Difficult Rural Area Service to his credit, is not entitled to any weightage in terms of the prospectus and the Medical Council Regulations. WPC9925/2010 -: 12 :- In the result, this writ petition fails. The same is accordingly dismissed. No costs. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/2906