IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 16092 of 2010(J) -------------------------------------- PETITIONER: ------------------- DR.V.NEBU JOHN, ASSISTANT SURGEON, PRIMARY HEALTH CENTRE, AMBOORI, THIRUVANANTHAPURAM. BY ADVS. SRI.ELVIN PETER P.J, SMT.POOJA SURENDRAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER (HEALTH), THIRUVANANTHAPURAM. *ADDL. RESPONDENTS 4 TO 6 IMPLEADED: 4. THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM. 5. THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, KOZHIKODE. 6. DR. RAVINDRAN K.O., ASSISTANT SURGEON, PRIMARY HEALTH CENTRE, OLAT, KASARAGODE. (NOW UNDERGOING POST GRADUATE COURSE IN M.S. GENERAL SURGERY, GOVT. MEDICAL COLLEGE, KOZHIKODE. *ADDL. RESPONDENTS 4 TO 6 ARE IMPLEADED AS PER ORDER DATED 09/07/2010 IN I.A. NO. 9168/2010. R1 TO R3 BY GOVERNMENT PLEADER SRI. ANTONY MUKATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J. ================ W.P.(C) NO. 16092 OF 2010 (J) ===================== Dated this the 9th day of July, 2010 J U D G M E N T Petitioner is an Assistant Surgeon presently posted at the Primary Health Centre, Amboori in Trivandrum District. In Ext.P7 seniority list, he is at Sl.No.18. He aspires for admission to Post Graduate Course in the Health Service quota, the admission to which is governed by the provisions contained in the Kerala Medical Officers Admission to post Graduate Courses under Service Quota Act 2008. 2. Ext.P6 is the prospectus published by the 1st respondent for admission to Medical Post Graduate Degree/Diploma Course 2010. Petitioner submits that admission to Health Service quota is governed by the provisions of the Act referred to above and is based on seniority. It is contended that he is eligible in all respects, but however, he was denied admission on the ground of pendency of disciplinary proceedings. It is in these circumstances, he has filed this writ petition with the prayer to quash Ext.P4, P8 and P10, memo of charges that are pending against him and also seeking a direction to grant him WPC No. 16092/10 :2 : admission for Medical Post Graduate Course in accordance with his seniority position. In the alternative, petitioner also seeks a direction for the expeditious completion of the disciplinary proceedings. 3. A statement has been filed on behalf of the 2nd respondent. In this statement, reference has been made about two memo of charges that are pending against him. In so far as Ext.P4 is concerned, it is stated that misconduct alleged is that despite the petitioner being unauthorizedly absent during the period 12/12/07 to 22/1/08, he marked attendance on all days in the attendance register. In so far as Ext.P8 is concerned, the allegation against the petitioner is that he had forged an experience certificate. Reference is also made to a complaint made by the Amboori Grama Panchayat dated 28/9/09 alleging that the petitioner has misbehaved with the patients. It is stated that to the seats that are reserved under the Health service quota, there were 651 applicants, out of which three candidates including the petitioner, who are facing disciplinary action were not recommended. It is stated that it has been decided that candidates who are facing disciplinary action will not be relieved WPC No. 16092/10 :3 : for the purpose of pursuing higher studies. It is on these grounds, the respondents are seeking to justify their action. 4. Admittedly, the petitioner is facing atleast three disciplinary actions evidenced by Exts.P4, P8 and P10 memo of charges. In so far as the first prayer to quash the memo of charges is concerned, this Court can exercise the power of judicial review in so far as the memo of charges are concerned only in cases where the memo of charges are patently vitiated by malafides or for want of jurisdiction and in cases where the allegations taken at its face value do not constitute misconducts. Having closely read Exts.P4, P8 and P10, I am not persuaded to think that any one of the aforesaid vitiating circumstances are attracted in so far as these memo of charges are concerned. On the other hand, what the petitioner wants this Court to do is to examine the truth or otherwise of the charges. Such an exercise is impermissible in a proceedings under Article 226 of the Constitution of India, at least at the threshold of the proceedings when the disciplinary authority is seized of the matter. Therefore, the petitioner will have to face the disciplinary action and the disciplinary authority will have to conclude the same in WPC No. 16092/10 :4 : accordance with the rules. Hence, the prayer to quash Exts.P4, P8 and P10 memo of charges is only to be rejected and I do so. 5. Now the only question is whether the petitioner can be refused to be recommended for the reason that disciplinary actions are pending against him. True as contended by the counsel for the petitioner, the conditions of the prospectus do not include a clause enabling the 2nd respondent to deny recommendation or admission to a candidate for the reason that he is facing disciplinary action. However, as can be seen from the statement filed, there are three applicants who are facing disciplinary action and it has been decided by the 2nd respondent that none of these candidates will be recommended for the reason that they had decided not to relieve such persons. 6. In my view, even in the absence of a provision in the prospectus, it is open to the disciplinary authority to refuse to recommend a person facing a disciplinary action. This is for the reason that, if admitted to the Post Graduate Course, the candidate will have to be relieved for undergoing further studies and if such a candidate is relieved, that will certainly frustrate the disciplinary action that is pending. That apart, in this case, there WPC No. 16092/10 :5 : were more than 651 applicants. Only three are facing disciplinary action. When there are numerous applicants, if the disciplinary authority has decided to exclude persons facing disciplinary action, this Court cannot find any arbitrariness in such a decision warranting interference in a proceedings for judicial review. Therefore, I am not persuaded to interfere with the decision of the 2nd respondent in not recommending the petitioner for the reason that he is facing disciplinary actions. 7. Be that as it may, once disciplinary action is initiated, it is necessary that the proceedings should be completed expeditiously, so that the uncertainty created on account of the pendency of the proceedings, is removed on an expeditious basis. In this case, disciplinary actions initiated in May 2009, March and April 2010 are pending without any progress. According to the petitioner, he has also filed his written statement of defence. If that be so, it is incumbent on the part of the 2nd respondent to complete the disciplinary action expeditiously. This the 2nd respondent shall do. 8. Therefore, the 2nd respondent is directed to conclude the disciplinary proceedings that are pending against the WPC No. 16092/10 :6 : petitioner. This shall be done, as expeditiously as possible, at any rate within 4 months of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp