IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 WP(C).No. 18518 of 2011(L) --------------------------------------- PETITIONER(S): ------------------------- DR. ANIL.P. JOHN, HOUSE NO.38/2152, MATHA CHURCH ROAD, KALOOR.P.O., ERNAKULAM,KERALA. BY ADV. SRI.S.ARUN RAJ SRI.P.DANIEL RESPONDENT(S): -------------------------- 1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695 001. 3. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,THIRUVANANTHAPURAM-695 001. 4. DIRECTOR OF HEALTH SERVICE, THIRUVANANTHAPURAM-695 001. 5. THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR-8, DWARAKA PHASE-I, NEW DELHI, PIN-110075. *ADDL.R6 TO R13 IMPLEADED * ADDL.R6: HUSSAN JASHEEL.K., JUNIOR CONSULTANT, GOVT.GENERAL HOSPITAL, MANJERI, MALAPPURAM. *ADDL.R7: ROOBY.E.H., JUNIOR CONSULTANT,TALUK HOSPITAL, TIRURANGADI, MALAPPURAM. *ADDL.R8: SURAJ.R.K., JUNIOR CONSULTANT, TALUK HOSPITAL, PERINTHALMANNA, MALAPPURAM. 2/- -2- WP(C)NO.18518/2011 *ADDL.R9: SILJO JOSE, JUNIOR CONSULTANT, GENERAL HOSPITAL, PALA, KOTTAYAM. *ADDL.R10: PAUL THOMAS, JUNIOR CONSULTANT, TALUK HOSPITAL, OTTAPPALAM, PALAKKAD. *ADDL.R11: PRAVEEN.S., JUNIOR CONSULTANT,TALUK HOSPITAL, OTTAPPALAM, PALAKKAD. *ADDL.R12: SANDEEP SHENOY V., JUNIOR CONSULTANT,TALUK HOSPITAL, NORTH PARAVUR, ERNAKULAM. *ADDL.R13: YAMUNA R PILLAI,P.H.CENTRAL, GOVT. GENERAL HOSPITAL, PARIPPALLY, KOLLAM. *ADDL.R6 TO R13 IS IMPLEADED AS PER ORDER DATED 21/7/2011 IN IA NO.11863/2011. R1 TO R4 BY GOVERNMENT PLEADER SRI.P.N.SANTHOSH R5 BY ADV. SRI.ALEXANDER THOMAS, SC, MCI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2011, ALONG WITH WPC NO. 18833 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.18518/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE EDUCATIONAL CERTIFICATES OF THE PETITIONER. P2 COPY OF THE PROSPECTUS FOR 2011 ISSUED BY THE 2ND RESPONDENT FOR ADMISSION TO THE POST GRADUATE SUPER SPECIALTY COURSES 2011 IN THE GOVERNMENT MEDICAL COLLEGES IN KERALA. P3 COPY OF THE PROSPECTUS FOR THE YEAR 2010. P4 COPY OF THE MERIT LIST (PROVISIONAL) FOR D.MGASTROENTEROLOGY PUBLISHED BY THE 3RD RESPONDENT. P5 COPY OF THE PROVISIONAL SENIORITY LIST DATED 20/7/2011 OF CANDIDATES UNDER HEALTH SERVICE QUOTA PUBLISHED BY THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts ANTONY DOMINIC, J. ---------------------------------------------------- W.P.(C) Nos. 18518 & 18833 OF 2011 ----------------------------------------------------- Dated this the 21st day of July, 2011 J U D G M E N T The issues raised in these two writ petitions are identical and therefore, these cases were heard together and W.P.C.18518/11 is treated as the leading case. 2. Petitioners are aspirants for admission to Post Graduate Medical Super Specialty Course (D.M. Gastroenterology) in the Government Medical Colleges in the State of Kerala for the year 2011, in the General merit Quota. They are included in the rank lists published by the Commissioner for Entrance Examination. 3. As per the Prospectus, a copy of which is Ext.P2, there are 10 seats available for D.M. Gastroenterology. Out of 10 seats, 7 seats have been allotted to the General merit Quota, two seats to the Medical Education Service Quota and the remaining one seat is allotted to Health Service Quota. It is stated that last year, out of the 10 W.P.(C) Nos. 18518 & 18833 OF 2011 :2 : seats 9 were allotted to General Merit Quota and the remaining one seat was allotted to Medical Education Service. In W.P.C.18518/11 under ground A it has been specifically averred by the petitioner thus: “Even prior to the issuance of the prospectus for 2011 distributing the seats for Medical Education Service Quota in D.M. Gastroenterology, the 2nd respondent was well aware about the number of persons that would be eligible or qualified to apply under the Medical Education Service Quota for the year 2011. It is reliably understood that there is no person eligible or qualified to apply under the Medical Education Service quota. It is also learnt that no one has applied under the Medical Service quota in D.M. Gastroenterology. It could be seen from the prospectus of earlier year, that the medical service quota for D.M. In Gastroenterology was only 1. It is most respectfully submitted that the respondents knowing fully about the above factual W.P.(C) Nos. 18518 & 18833 OF 2011 :3 : position, should not have increased the number of seats available for medical service quota this year by reducing the number of seats of General merit quota and then for utilizing the unfilled medical service quota seats to be filled from Health service Quota.” 4. Based on these pleadings, prayers sought are to quash the allotment of seats for D.M. Gastroenterology to Medical Education Service Quota and to direct that these seats be filled up from the General Merit Quota. 5. Taking note of the specific case of the petitioner regarding the non availability of any eligible candidate in the Medical Education Service Quota to which 2 out of 10 seats are earmarked as per the prospectus, a copy of which is produced as Ext.P2 in W.P.C.18518/11, the respondents were directed to file a statement answering the said allegation. Accordingly on behalf of the first respondent, a statement has been filed by the learned Government Pleader. In paragraph 10 of the statement it is admitted that there are no candidate in the Medical Education W.P.(C) Nos. 18518 & 18833 OF 2011 :4 : Service Quota eligible for admission to D.M. Gastroenterology and the contention appears to be that in terms of clause X (c) of prospectus the unfilled seats will be filled up from Health Service Quota candidates. The relevant part of paragraph 10 of the statement reads as follows. “As per the list provided by the Commissioner for Entrance Examinations, eight candidates have qualified under service quota for D.M. Gastroenterology. However none of them comes under the MESQ. The list is to be provided by the Director of Health Services. The DHS will prepare the seniority list of eligible candidates under HSQ. Since there are no eligible candidates under MESQ the seats earmarked under MESQ will be converted to HSQ.” 6. In this context clause X(c) of the Prospectus, which is relied on by the respondents, being relevant is also extracted below for reference; “Unfilled seats: Any seat falling vacant W.P.(C) Nos. 18518 & 18833 OF 2011 :5 : in the Health Service Quota will be filled up by the Medical Education Service Quota and any vacant seat in MES Quota will be filled by eligible Health Service candidates. The seats again left vacant will be added to General Merit Quota. Any seat vacant in the General Merit Quota will be filled by MESQ and Health Service Quota respectively.” 7. Therefore, according to the learned Government Pleader, since no eligible candidate is available for the Medical Education Service Quota, the two seats which are now earmarked for the Medical Education Service Quota will get converted to Health Service Quota. In my view, earmarking of two seats for Medical Educational Service Quota and its conversion to Health Service Quota is illegal. It should first be stated that principles of equality as enshrined in our Constitution obliges the State to fill up all seats adopting a uniform criteria and merit as the basis. If so, all the seats should have been filled up from among the candidates included in the General Merit list. However, W.P.(C) Nos. 18518 & 18833 OF 2011 :6 : earmarking of limited number of seats to various categories is permissible in law, which is an exception to the General rule of merit based admission and is intended to provide opportunity to those belonging to such categories to seek admission to superspecialty courses. However, before any such reservation is made the respondents are required to assess the number of eligible candidates in the service concerned, who are the beneficiaries of the respective quota and the number of seats which are required to be earmarked. Such an exercise is required to be made to avoid arbitrariness, lest allotment of seats will be vitiated for non application of mind, arbitrariness etc. If that to be the basis and the method to be adopted, in view of the admitted non availability of candidates in the Medical Education Service for admission to D.M. Gastroenterology, there could not have been any allotment of seats to that quota. As far as clause X(c) of the Prospectus relied on by the respondents is concerned, in my view, this provision cannot be relied on to justify a quota fixed even in the absence of any eligible W.P.(C) Nos. 18518 & 18833 OF 2011 :7 : candidate to apply for admission. On the other hand, in situations where quota has been validly fixed and the available eligible candidates are insufficient to fill up the seats, such seats will get reverted as per clause X(c) of the Prospectus. As against this, in the instant case, this provision is sought to be used to increase the quota available to Health Service candidates, which is clearly impermissible. 8. At the time of preparation of the prospectus and while earmarking of these seats, respondents were very well aware that no candidate is available in the Medical Education Service and it was, inspite of this knowledge that they have earmarked two precious seats to the Medical Education Service Quota. This was only to pave way for its conversion to Health Service Quota and thus to increase the Quota earmarked to those in the Health Service Department. The fact that Kerala Medical Officers Admission to Post Graduate Courses under the Service Quota Act 2008, enables the State to set apart upto 40% of the seats to service candidates is no justification for such W.P.(C) Nos. 18518 & 18833 OF 2011 :8 : an illegal exercise. In a situation of this type, allotment of two seats to Medical Education Service Quota is illegal and these seats should have been retained for the General merit Quota itself. In that view of the matter I am inclined to think that the two unfilled seats now available in the Medical Education Service Quota should be filled up by considering the eligible candidates from the General Merit Quota itself. 9. Therefore I allow the writ petition and direct that in view of the non availability of the candidates in Medical Education Service, the two seats of D.M. Gastroenterology allotted to Medical Education Service Quota shall be filled up from the eligible candidates included in General Merit Quota. W.P.C.18833/11 is also disposed of with similar directions. ANTONY DOMINIC, JUDGE ul/-