IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 382 of 2010(W) ------------------------------------- PETITIONER(S): ------------------------- 1. DR.VEENA.G.J,C/O.N.SASIDHARAN PILLAI, SASIMANDIRAM,AMBALAMUKKU,ELAMADU.P.O,AYOOR, KOLLAM. 2. DR.REXY XAVIER,D/O.M.O.XAVIER,31/284, MALIAKAL HOUSE,CHANGAMPUZHA NAGAR.P.O,KOONAMTHAI, KOCHI-33. 3. DR.LIYA LALIGRO,D/O.JOSEPH LALIGRO, LANTHAPARAMBIL HOUSE,FATHIA CHURCH ROAD,ELAMKULAM, KOCHI-20. 4. DR.SANKAR MOHAN,S/O.S.MOHANAKUMARAN PILLAI, MANGALYA,NEERAVIL,PERINADU.P.O,KOLLAM. 5. DR.SANU SAIN,D/O.S.LASBI,SAPPHIRE, THAYYAMALA.P.O,KOLLAM-20. 6. D.MANU.S,S/O.P.SKANDASWAMY PILLAI, MATHALATHIL,THAVIYODE,VITHURA.P.O, THIRUVANANTHAPURAM. 7. DR.SANJAY SUBRAMANIAM, S/O.DR.N.SUBRAMANIAM,9/315(1),N.D.STREET, JAWAHAR NAGAR,THIRUVANANTHAPURAM-3. 8. DR.NOBBY.M,S/O.R.MANIRAJAN, SREYAS,PULLOORMUKKU,KALLAMBALAM.P.O, THIRUVANANTHAPURAM-5. 9. DR.K.SALINI,D/O.RAMAKRISHNAN.A.T, CHOLAKKATTUVALAPPIL,CHEMBRA.P.O,THIRUVENGAPURA (VIA),PALAKKAD. 10. DR.SHAMIM KUNHU.V,S/O.USMAN,VAKKULATHIL HOUSE,PUNNAYOORKULAM.P.O,UPPINGAL,THRISSUR-1. 11. DR.KRISHNAKUMAR.M.P, S/O.M.R.PREMAN,MUDILIKKULAM HOUSE,ANNALLUR, VIA.CHALAKKUDY,THRISSUR-7. 12. DR.ARUNTHOMAS,S/O.P.T.THOMAS,PAIKADA HOUSE,VADAKKAL.P.O,ALAPPUZHA-3. BY ADVS. SMT.S.KARTHIKA, MR.M.R.ANISON. Kss ..2/- ..2... WPC.NO.382/2010 RESPONDENT(S): --------------------------- 1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT,HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR,NATIONAL RURAL HEALTH MISSION,OFFICE OF THE STATE MISSION DIRECTOR (NRHM).NRHM DIRECTORATE,GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER,PALAKKAD. 4. DR.HEMALATH.R,MALLAYYA,SOPANAM HOUSE, PRASANTHI NAGAR,CHAKKOTH LANE,POONKUNNAM,THISSUR. 5. DR.ARDRA.M,VI/500,IST STREET,KALPAKA GARDENS,KOLAZHI.P.O,THRISSUR. 6. DR.MINI,CHANDINI,PALLIPURAM,PATTAMBI ROAD, PERIMUDIYUR.P.O,PALAKKAD. 7. DR.SURAJ MENON.M,KOUSTHUBHAM,SHIVJI NAGAR,KALLEKULANGARA.P.O,PALAKKAD. 8. DR.SOWMIA.P.F,PARAMBAN HOUSE,ROSEV DALE, AYYANTHOLE.P.O,CHUNGAM,THRISSUR. 9. DR.ANJANA BABU,ATHIRA,PERINGODE ELAMPAD.P.O,PUNALUR,KOLLAM. 10. DR.MANJUSHA.K,KALAPPURAYIL HOUSE,THRITHALOOR.P.O.THRISSUR. 11. DR.JESLIN JACOB,PUTHIYAPARAMBIL HOUSE, CONVENT ROAD,ARANATTUKARA.P.O,THRISSUR. 12. DR.ARUN.P.S,PULIYASSERI MANA,MANNARKKAD P.O,PALAKKAD. 13. DR.VIJITH.E.K,ROJO,PALAT ROAD, CHUNDUVALATHUR,SHORNUR.P.O,PALAKKAD. 14. DR.RAKESH RAJU.K.K,S/O.SUBASH CAFE NEAR KVR HIGH SCHOOL,SHORNUR. 15. DR.VASANTHASREE NAIR,FLAT NO.106, JAI APARTMENTS,I.P.EXTENSION PATPARGANJ,NEW DELHI. 16. DR.HRIDAYA MOHAN,SOPANAM,POTTAYIL LANE, M.G.ROAD,THRISSUR. Kss ..3/- ..3... WPC.NO.382/2010 W 17. DR.CHINNU.R.S,RAM NIVAS,PERUMPANACHI.PO, MADAPPALLY,CHANGANASSERY,KOTTAYAM. 18. DR.SREEJITH.T.V,THANKAPARAMBIL HOUSE, DOCTOR PADY,KOLAZHY.P.O. 19. DR.SHANU CHANDRAN,POURNAMY,AZHOOR MARKET P.O., PERUNGUZHY,THIRUVANANTHAPURAM. 20. DR.AJISH.C.Y,CHITTILAPPALLY HOUSE, SURYA NAGAR,VELLANIKKARA.P.O,THRISSUR. 21. DR.ANOOPKUMAR.T.N,ANUP NIVAS, THAIKKATTUSSERY.P.O,CHERUSSERY,THRISSUR-22. 22. DR.FEBY T.FRANCIS,THEKKANATH HOUSE, KALATHODE.P.O,OLLUKARA,THRISSUR. 23. DR.BAVITHA S.DEVAN,SANDRAM,21/423A, MALAPPURAM-5. 24. DR.MUHAMMAD SHAREEF.P,PARAPPIL, PANNIKKODE.P.O,MUKKAM,KOZHIKODE. 25. DR.V.SHEENA,MANNAMPARIYARAM,KODUMBI.PO, PALAKKAD. 26. DR.NIMMY K.FRANCIS,KANICHI, KAARIACHIRA.P.O,THRISSUR. 27. DR.EDWIN J.GEORGE,IRIMPEN HOUSE, DR.ANNI BESANT STREET,ANCHERICHIRA,KURIACHIRA.P.O, THRISSUR. R1 & R3 BY GOVERNMENT PLEADER R2 BY ADV. MR.M.AJAY,SC,NATIONAL RURAL HEALTH MISSION R4,8,10,11 BY ADV.MR.C.E.UNNIKRISHNAN R7,9,13 & 17 BY ADV.MR.BINOY VASUDEVAN R14,18,20-22 BY ADV.MR.C.E.UNNIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2/02/2010 ALONG WITH WPC NO. 410 OF 2010, THE COURT ON 08/03/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.382/2010 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PAGES OF THE RANK IST PREPARED BY THE 2ND RESPONDENT. P2: COPY OF THE RELEVANT PAGES OF DISTRICTWISE ALLOTMENT LIST. P3: COPY OF THE LIST PREPARED BY THE PETITIONER. P4: COPY OF THE NOTICE DTD. 19/12/2009 ISSUED BY THE 2ND RESPONDENT. P5: COPY OFTHE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE HEALTH MINISTER DTD. 4/01/2010. P6: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS PARENTS BEFORE THE HEALTH MINISTER. P7: COPY OF THE DETAILS OF PH CENTRES PUBLISHED IN THE WEB SITE OF THE 1ST RESPONDENT. P8: COPY OFTHE CHART PREPARED BY THE PETITIONERS. RESPONDENT'S EXHIBITS: R12(A): COPY OFTHE FORM OF BOND FOR RS.100/-. R12(B): COPY OF THE GOVERNMENT ORDER VIDE G.O.(MS) NO. 533/2008/H & FWD DTD. 07/10/2008. R12(C): COPY OF THE ORDER ISSUED ORDER NO.NRHM/BAC/01/2010 DTD. 04/01/2010 ISSUED BY THE THIRD RESPONDENT. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 382/2010-W & 410/2010-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March, 2010. JUDGMENT The issues raised in these writ petitions are common and therefore they are disposed of by a common judgment. 2. The petitioners herein are holders of MBBS degree of the Medical Colleges coming within the jurisdiction of the Kerala University and party respondents are MBBS degree holders coming within the area of the Calicut University. 3. The petitioners have approached this Court in the following circumstances. The petitioners and the party respondents completed their internship/house surgency in December, 2009. In terms of the policy of the Government all of them are bound to undergo compulsory Rural Service in Public Health Centres for a period of one year. On the basis of the marks obtained by the MBBS degree holders in their final MBBS Examination, the second respondent published a rank list as per Ext.P1. Subsequently, the candidates were called for interview for allotment of district of their choice on 19.12.2009. wpc 382 & 410 /2010 2 4. During the time of counselling/interview, they came across another rank list published on University-wise. According to them, such a list was not made available to the petitioners or was not published in the website also. The allotment proposed to be made from the said list, was objected to by the petitioners, but the allotments have been completed. This is under challenge in these writ petitions. 5. As far as the Rural Centres are concerned, there are three categories, viz. Rural, Difficult Rural and other categories. The students from Kottayam Medical College were already allotted various Health Centres and Hospitals one month prior to the publication of Ext.P1. It is averred in the writ petitions that on 4.1.2010 ignoring the request made by the petitioners, counsellings were carried out. It is pointed out that since the ranking based on the mark list has been changed, it caused substantial prejudice to the petitioners. In the new rank list, they have been given lower ranking also. 6. Herein, the allotment in respect of Palakkad and Kannur Districts are under challenge. Mainly it is contended that when the respondents have adopted marks obtained in the MBBS examination as the criteria which, is a safe method, the change of the same arbitrarily in the midst of the allotment process, cannot be supported. All the students who have passed out in wpc 382 & 410 /2010 3 MBBS course from various colleges in the State are equal. The allotment of students for the Primary Health Centres for the purpose of compulsory Rural Service was based on their marks in the final year MBBS examination even earlier. Therefore, Ext.P2 cannot be supported. The petitioners are entitled for allotment and choice of centres based on their marks in the MBBS Examination itself. It is also contended that the petitioners are having more marks than the contesting respondents. They are accordingly seeking for a direction to the respondents to allot the petitioners and party respondents to the compulsory Rural Service strictly based on the marks obtained by them in the final year MBBS Examination. 7. The writ petitions were filed while the steps for posting the various persons were progressing. By interim order dated 6.1.2010 it was clarified that the further action taken will be subject to further orders to be passed in the writ petitions and later by another order dated 2.2.2010, the petitioners were permitted to report before the respective DMO on 4.2.2010 for allotment of centres which was also subject to further orders to be passed in the writ petitions. 8. On behalf of the second respondent, a detailed statement has been filed. Some of the party respondents have also filed counter affidavit in the writ petitions and the petitioners have field a reply affidavit also. wpc 382 & 410 /2010 4 9. In the statement filed by the second respondent, viz. the Director, National Rural Health Mission, it is submitted that the obligation to undergo compulsory Rural Service is evident from the bond executed by the petitioners with the first respondent. Annexure I contains the revised guidelines for allotment of institutions to Medical graduates. With regard to the centralized counseling conducted at Trivandrum, the following aspects have been pointed out. The centralized counseling was conducted in the year 2007 in Thiruvananthapuram and the candidates were allotted to the different districts and the District Medical Officer in charge of the District was authorized to assign individual places of posting based on the needs and necessities of the Districts and as per the choice of the candidates. Last year’s centralized counseling was held in Thiruvananthapuram for graduates of each University as they passed out as per the list provided by the Director of Medical Education and the individual places of postings were allotted through the centralized counseling itself. In many cases the candidates had reported for joining duty after a long duration and even after months of their postings. In some cases they had not reported for duty and the need for a doctor in the particular institution was most immediate. Therefore, they have decided that this year allotment would be made to the different districts based on the centralized counseling and the CRS doctors wpc 382 & 410 /2010 5 would be required to appear before the concerned DMOs who would allot them based on the requirements and necessities in the individual districts. 10. A common counselling was held this year for the students from Kerala University (Thiruvananthapuram and Alappuzha Medical Colleges) and Calicut University (Kozhikode and Thrissur Medical Colleges) after getting lists of candidates from the respective Universities by the Director of Medical Education. A combined rank list based on the marks obtained in the final MBBS Examination was prepared and published on 15.12.2009. Thereafter, it was brought to the notice of the second respondent that there was widespread discrepancies in the marks awarded to final MBBS students in the two Universities. Only 7 out of the top 50 scoring students in the combined mark list belong to Calicut University and the rest belong to Kerala University. Only 25 out of the top 100 students in the combined list come from Calicut University. Various representations were submitted by the students association also and after considering the said requests, it was decided to conduct the process of counseling to be equitable to the students of both Universities. Therefore, the total number of requirements in each district was divided into two wherein more number of seats were allotted in southern districts for students from Kerala University and more number of seats were allotted in northern districts for the students from wpc 382 & 410 /2010 6 Calicut University. Subsequently, counselling was conducted with a direction to the candidates to report before the concerned DMO on 4.1.2010 for allotment of institutions and to join the allotted station from 5.1.2010. It is further pointed out in para 6 that for allotting individual institutions to the doctors allotted to a particular district a district-wise rank list had to be prepared. To overcome the wide disparity in marks awarded for the final year MBBS examination in Kerala University and Calicut University this year, it was decided to prepare a district-wise seniority list not based on the total marks awarded to the individual candidates but based on the ranks obtained by them in their respective Universities. Such a rank list reflecting their relative ranks was prepared for each district and was published in the official website on 31.12.2009. Based on these lists, counseling was conducted on 4.1.2010 in every district. Except in Palakkad and Kannur Districts there was no complaint whatsoever and the candidates were accordingly posted in the institutions. Counselling in respect of these two districts were tried to be blocked by candidates from Kerala University. Finally, except the petitioners, all others participated in the counseling session and were allotted institutions based on their choice and availability. Out of the 409 candidates, 353 candidates attended counseling and were allotted postings at particular institutions based on their choice wpc 382 & 410 /2010 7 and availability. 11. It is further pointed out that the counseling is only for the purpose of showing the choice of the candidates for their posting. The stand taken, substantially, is that the second respondent considered the fact that the students in the combined rank list had not appeared for a common examination, but had appeared for two different examinations conducted by two different Universities. Marks awarded by these two Universities were statistically diverged and hence an equitable formula had to be evolved to determine inter-se merit between students. It is in these circumstances, a combined rank list was prepared not based on the marks obtained by the students in the respective Universities. Accordingly, it is contended that the method adopted is a fair and transparent one. 12. The above stand of the second respondent is supported by the other party respondents also. 13. Heard learned Senior Counsel Smt.V.. Seemanthini and Smt. S. Karthika for the petitioners, Shri M. Ajay, learned Standing Counsel appearing for the second respondent, Shri C.E. Unnikrishna, Shri Binoy Vasudevan and learned Govt. Pleader for the other respondents. 14. Smt.V.P. Seemanthini, learned Senior Counsel appearing for the petitioners submitted that when a clear yardstick has been adopted by the wpc 382 & 410 /2010 8 second respondent, by preparing a rank list on the basis of marks, there was no justification for altering the same. It is submitted that marks of the MBBS Examination obtained by the respective candidates is a safe criteria to be adopted for the purpose of preparing the rank list. It is therefore submitted that when the same is tampered with by other considerations which are not germane to the issue, the entire action can only be treated as arbitrary and discriminatory. It is pointed out that the whole action is tainted by arbitrariness which is writ large and the entire exercise was done even without giving sufficient time to the candidates and due information was also not given in the matter. The result of the counseling is a real disadvantage to the persons like the petitioners who obtained higher marks in the MBBS Examination. It is therefore submitted that the entire action will have to be redone by the respondents. Learned Senior Counsel invited my attention to Ext.R1 Govt. Order dated 7.10.2008 also to contend that going by para 12 of the same, the Director of Medical Education will have to furnish the list of candidates who have completed House Surgency from Government Medical Colleges, wherein the marks obtained by them will have to be indicated. 15. Ext.R1 shows that it is a consolidated order issued with regard to the appointment in question, after referring to various earlier orders. wpc 382 & 410 /2010 9 Going by para 4, for doctors who have successfully completed the MBBS Course from various Medical Colleges, the Doctor will be appointed in public health institutions under the Director of Health Services/Director of Medical Education Service, etc. Their monthly remuneration was also indicated therein. They have to complete the compulsory Government Service posting within a period of 12 months from the date fixed in the posting orders. Para 12 contains the guidelines to be followed. As per clause (a), the Director of Medical Education should furnish the list of candidates who have completed House Surgency from Government Medical Colleges with their current residential address and marks secured, to the second respondent herein and the Secretary to Government (Health). The allotment of stations for Compulsory Government Service posting will be made by a Committee consisting of State Mission Director & Deputy Secretary to Government (H& FW) (Chairman), Director of Health Services and Director of Medical Education/Principals of Medical Colleges, etc. After counseling the doctors will be allotted to District Medical Officers as per the requirement of doctors in the field and by the Director of Medical Education for posting at Medical College, Alappuzha. Para 13 of Ext.R1 shows that posting orders will be issued by the second respondent on behalf of the Government on the basis of the recommendation of the Committee wpc 382 & 410 /2010 10 after approval of the Secretary (H& FW). 16. Actually, the preparation of the rank list or publication of the same is not governed by any of the provisions of Ext.R1. It is not provided therein to adopt the marks of the MBBS examination for preparing the rank list even though para 12 of Ext.R1 shows that the list should contain the current residential address and marks secured by the candidates. What is involved is only a counseling in the light of the list forwarded and choice of preference of the candidates, even though actually no such process is envisaged in the agreement entered into by the students with the first respondent. 17. The question is therefore, whether the action taken by the second respondent in publishing a fresh rank list after consideration of the various representations by the students of Calicut University, is justified. 18. Learned Standing Counsel appearing for the second respondent submitted that going by the decisions of the Apex Court and that of this Court, it is clear that marks of the MBBS examination may not be a uniform one in respect of different Universities and therefore it may not be a safe method to be applied. There is no common Entrance Examination here. It is stated that the Apex Court in Dr. Preeti Srivastava and another v. State of M.P. and others {(1999) 7 SCC 12), considered a case of similar nature wpc 382 & 410 /2010 11 with regard to the conduct of Entrance Examination for post graduate courses. It was found therein that various aspects will have to be taken into account while conducting the plea to adopt marks of MBBS examination as the criteria. The courses of study may not be uniform. The quality of teaching may not be uniform. Learned Standing Counsel invited my attention to the following aspects laid down by the Apex Court in para 28: “There may be several universities in a State which conduct MBBS courses. The courses of study may not be uniform. The quality of teaching may not be uniform. The standard of assessment at the MBBS Examination also may not be uniform in the different universities. With the result that in some of the better universities which apply more strict tests for evaluating the performance of students, a higher standard of performance is required for getting the passing marks in the MBBS Examination. Similarly, a higher standard of performance may be required for getting higher marks in other universities. Some universities may assess the students liberally with the result that the candidates with lesser knowledge may be able to secure passing marks in the MBBS Examination; while it may also be easier for candidates to secure marks at the higher level. A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously, as soon as one concedes that there can be differing standards of teaching and evaluation in different universities, one cannot rule out the possibility that the candidates wpc 382 & 410 /2010 12 who have passed the MBBS Examination from a university which is liberal in evaluating its students, would not, necessarily, have passed, had they appeared in an examination where a more strict evaluation is made. Similarly, candidates who have obtained very high marks in the MBBS Examination where evaluation is liberal, would have got lesser marks had they appeared for the examination of a university where stricter standards were applied. Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purpose is also to evaluate all candidates by a common yardstick. One must, therefore, also take into account the possibility that some of the candidates who may have passed the MBBS Examination from more “generous” universities, may not qualify at the entrance examination where a better and uniform standard for judging all the candidates from different universities is applied. In the interest of selecting suitable candidates for specialised education, it is necessary that the common entrance examination is of a certain standard and qualifying marks are prescribed for passing that examination. This alone will balance the competing equities of having competent students for specialised education and the need to provide for some room for the backward even at the stage of specialised postgraduate education which is one step below the super-specialities.” 19. My attention was also drawn to a decision of a Full Bench of this Court in State of Kerala and another v. Rafia Rahim (1978 KLT 369 (FB) wherein an identical question was considered by the Full Bench. It wpc 382 & 410 /2010 13 was found that “the scheme of selection for admission to the Medical Colleges on the assessment of merit of students drawn from different universities with no uniformity of standards is objectionable and violative of Art.14 of the Constitution.” Accordingly, it was held that a common Entrance Examination will have to be conducted. Therefore, what is projected in the above decisions is the principle that it is not safe to adopt the marks obtained in examination conducted by the respective universities as the basis. All aspects raised by the petitioners will have to be understood in the light of the above legal position laid down in the two decisions referred to above. Praveen S.Lal v. State of Kerala (2006 (4) KLT 712) is a decision rendered by a learned Single Judge of this Court with regard to the grant of institutional performance to students who have passed MBBS, for admission to the training programme for the award of the Diploma of National Board. There was no challenge against the ranking given on the basis of MBBS marks. Actually, the question considered was a different one. Therefore, the said decision will not apply to the facts of this case. 20. Herein, what is emphasized by the learned Senior Counsel is that the mark should by itself form a uniform basis for preparing a list which is disputed by the other side. The second respondent has considered one wpc 382 & 410 /2010 14 aspect, i.e. there cannot be any uniformity of standards between Kerala and Calicut Universities in the matter of award of marks of the MBBS examination. The second respondent has emphasized that this has led to the preparation of a second list Ext.P2 and the list has been prepared in terms of the ranking given by these two Universities. Whether the same violates the principles enunciated under Article 14, is the moot question. Going by the principle stated in Dr.Preeti Srivastava’s case (supra), the admission to P.G. Medical courses on the assessment of merit of students drawn from different universities having no uniformity of standards, is objectionable. There also the marks obtained in the MBBS Examination was projected as the relevant criteria, which was not accepted by the Court. As held by the Apex Court, there cannot be any dispute that the quality of teaching may not be uniform, assessment method may be different and the fact that persons might have obtained higher marks because of different valuation, cannot be ruled out. It is in these circumstances in the above decisions it was held that a common entrance examination should be conducted. In Rafia Rahim's case (1978 KLT 369(FB), it was held that Article 14 will be violated if the merit of the students drawn from different Universities having no uniformities, is assessed for the purpose of selection for admission. wpc 382 & 410 /2010 15 21. Here, we are only concerned with the posting of doctors to Rural Service and therefore conducting a common entrance test does not arise. Therefore, for the purpose of counselling and for a proper guidance to them, the idea to prepare a rank list on the basis of the marks was found not justified in the light of the fact that the second respondent was of the view that such a criteria, if adopted, may bring out various anomalies in view of the difference in standards, valuation, etc.. What is emphasized by the learned counsel for the party respondents is also that as far as the students from Calicut University are concerned, due to various factors in respect of valuation etc. they could not obtain the very same high marks. It is averred in the counter affidavit filed by the party respondents that in respect of ranking given in the first list Ext.P1, only few students represented the Calicut University. The average of the marks for the students from Kerala University was 68, whereas in Calicut University it was only 63. It is their case that the same occurred only because of the questions put in the examination were different and valuation was done by different persons. 22. This is, therefore, a crucial aspect.