IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 WP(C).No. 17272 of 2011(H) ----------------------------------------- PETITIONER(S): ------------------------- 1. DR.AJAI K.S., PLOT NO.3, KSHB COLONY, SOUTH CHALAKKUDI, PIN - 680 307. 2. DR.SUBI DAS, 'SUJA', C.R.IYYUNNI ROAD, CHEMBUKAVU, THRISSUR - 20. BY ADVS. SRI.JACOB P.ALEX, SRI.JOSEPH P.ALEX. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM PIN - 695 039. 2. DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM PIN - 695 011. 3. COMMISSIONER OF ENTRANCE EXAMINATION, V FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 1 4. DR.S.ANIL KUMAR, ASSISTANT INSURANCE MEDICAL OFFICER, ESI HOSPITAL, ALAPPUZHA - 688 002. 5. DR.NAJMA H, ASSISTANT INSURANCE MEDICAL OFFICER, ESI HOSPITAL, ERNAKULAM - 682 018. Kss ..2/- ..2.... WPC.NO.17272/2011H 6. DR.RAHILA BEEVI M.A. ASSISTANT INSURANCE MEDICAL OFFICER, ESI DISPENSARY, FACTORY WARD, ALAPPUZHA - 688 002. 7. DR.RINCY M., ASSISTANT SURGEON, PHC, CHAPPARAPADAVU, KANNUR - 670 581. 8. DR.SHIJOY K.S., ASSISTANT INSURANCE MEDICAL OFFICER, ESI HOSPITAL, ERNAKULAM - 682 018. 9. DR.MOHAMMED RIAZ K.M. ASSISTANT INSURANCE MEDICAL OFFICER, ESI DISPENSARY, MYNAGAPPALLY, KOLLAM - 690519. 10. DR.SILBY P.Y., ASSISTANT SURGEON, PHC, KALAVOOR, ALAPPUZHA - 688 567. 11. DR.SIBY CHIRAKKAROT, ASSISTANT INSURANCE MEDICAL OFFICER, ESI HOSPITAL, ALAPPUZHA - 688 002. 12. DR.GITA M., ASSISTANT INSURANCE MEDICAL OFFICER, ESI HOSPITAL, ALAPPUZHA - 688 002. R1 O R3 BY GOVERNMENT PLEADER SRI.T.B. HOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON 04/07/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.17272/2011 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PROSPECTUS FOR MEDICAL POST GRADUATE DEGREE/ DIPLOMA COURSES, 2011 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE KERALA MEDICAL OFFICERS ADMISSION TO POST GRADUATE COURSES, UNDER SERVICE QUOTA ACT, 2008. P3: COPY OF THE RECORD OF PROCEEDINGS DTD. 29/04/2011 IN SLP.NO.11597-8 OF 2011 AND CONNECTED MATTERS. P4: COPY OF NOTIFICATION DTD. 05/05/2011 BEARING NO.CEE/2142/2010/TA IV PGM 2011. P5: COPY OF THE G.O.(RT) NO.2356/2011/H&FWD DTD. 24/06/2011. P6: COPY OF THE NOTIFICATION BEARING NO.B2/5000/2011/DME DTD. 24/06/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.R.RAMACHANDRA MENON, J ....................... W.P.(C).17272/2011 ....................... Dated this the 4th day of July, 2011 JUDGMENT The petitioners, who belong to the General Merit Category of candidates aspiring to have admission to the Medical Post Graduate Degree/Diploma course, are stated as aggrieved of Exts.P5 and P6 amendments brought about to the norms prescribed in Ext.P1 prospectus, whereby, the stipulation with regard to the filling up of the vacancies in the 'Service Quota' as per the relevant provisions of the Kerala Medical Officers' Admission to Post Graduate Courses, under Service Quota Act, 2008, (in short 'the Act') has been watered down, which is stated as detrimental to the interest and chance of the petitioners. 2. The contention of the petitioners is that, many of the persons now being considered for admission by virtue of Exts.P5 and P6 do not satisfy the norms under Ext.P1 prospectus with regard to the minimum length of service and as such, the concerned vacancies ought to have been left over to the General Quota candidates, by virtue of the stipulation under Clause XI(B)(iii) of Ext.P1. The specific case of the petitioners is W.P.(C).17272/2011 2 that, by virtue of the law declared by the Apex Court on the point, Ext.P1 prospectus could not have been varied by the respondents 1 to 3, after commencement of the process of selection; which hence is sought to be intercepted, seeking to direct the said respondents to fill up the remaining seats in the Service Quota by allotting the qualifying candidates in the General Merit Quota, in accordance with Ext.P1 norms. Reliance is sought to be placed on the decision rendered by the Apex Court in Secretary, A.P.Public Service Commission v. B.Swapna and Others (2005 (4) SCC 154) and also that of Division Bench of this Court in Varghese Philip v. State of Kerala (2004 (1) KLT 581). 3. Heard the learned counsel for the petitioners at length and also the learned Government Pleader appearing for respondents 1 to 3. 4. The background of the case has to be examined with reference to the admitted or rather undisputed sequence of events as given in the writ petition. By virtue of the Act, 40% of the total vacancies in the Medical PG Courses have been set apart as 'Service Quota', to be filled up by the eligible hands. As W.P.(C).17272/2011 3 per the relevant norms, the admission to the Medical P.G course is strictly based on the seniority and it was stipulated that a minimum of 'four years' service was necessary in the case of Health Services candidates; while 'one year' service was enough for the Medical Education Service candidates. As per 'Note 1' to Clause VIII of Ext.P1 prospectus, 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 by the concerned candidates at the time of submitting the application. Some of the candidates did not make any application for the 'Service Quota' and they participated and came out successful in the Common Entrance Test, under the General Quota. 5. 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. 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 W.P.(C).17272/2011 4 seniority. This clause in the prospectus was subjected to challenge before this Court by somebody 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 qualified in the Entrance Examination. 6. In the changed circumstances, some of the aggrieved persons 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) of the prospectus as aforesaid, they should be given an opportunity to have the same submitted, enabling them to be considered for the purpose of selection. It was contended by some of them that the certificates procured subsequently were not accepted by the respondents, in view of the expiry of time; while some others had a contention that the time provided later, to procure and produce the certificates, was totally inadequate. 7. Some of the parties to the judgment in Mohammed Riaz v. State of Kerala (2011 (2) KLT 294), took up the matter by W.P.(C).17272/2011 5 filing SLP before the Apex Court, where permission was granted and notice was ordered, but no interim stay of the impugned judgment was granted. However, taking note of the fact that only 15 in-service candidates who applied both for General Merit Quota and also for Service Quota got qualified in the Entrance Examination already held and that, several seats set apart for the Service Quota would get lapsed, the Apex Court directed the State Government to hold an Entrance Examination to fill up the unfilled seats in the 'Service Quota' so that, they would not go waste. It was also made clear that the '15' in-service candidates, who turned out to be successful in the Test conducted earlier, need not appear for any further examination and that they shall get admission on the basis of the examination in which they have already appeared. 8. Pursuant to Ext.P3 direction of the Apex Court as aforesaid, respondents 1 to 3 conducted a Supplementary Common Entrance Test on 29.5.2011, wherein many other candidates also got succeeded, obtaining the qualifying marks. But some of the candidates, who did not have a minimum of 'four years' service in the Health Services Department as prescribed in Ext.P1 prospectus and some candidates who had W.P.(C).17272/2011 6 not furnished copies of the relevant income/community certificate along with the application (which was not necessary as specifically stipulated in Clause XI(B)(iii) of the prospectus) had approached this Court by filing writ petitions, pointing out that, by virtue of the changed circumstances their candidature was also liable to be considered. It was also contended that in view of the necessity to have come through the Common Entrance Test as ordered by the Division Bench of this Court in Mohammed Riaz v. State of Kerala (2011 (2) KLT 294), there was no rhyme or reason for having prescribed the minimum qualifying service of 'four years' in the Health Services Department. Some of the candidates contended that they should be given an opportunity to participate in the Examination scheduled on 29.5.2011 and to consider their case as well, wherein appropriate interim orders were passed permitting such candidates to participate in the Supplementary Common Entrance Test scheduled on 29.5.2011. 9. When the above batch of writ petitions (W.P.(C). 11141/2011 and connected cases) came up for consideration before this Court, the learned Senior Government Pleader brought it to the notice of this Court, that the sequence of W.P.(C).17272/2011 7 events leading to the consequences resulted and likely to result were analyzed meticulously by the Government, and 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. 10. 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 placed for consideration of this Court, contains the conditions as given below:- (1). The candidates should have a minimum W.P.(C).17272/2011 8 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. Based on the submissions made on behalf of the concerned petitioners that the conditions were very much acceptable to them, the above writ petitions were disposed of as per the common judgment dated 23.6.2011, directing the respondents to consider the said petitioners for admission to the Medical P.G Course, subject to satisfaction of the other requirements, if any, 11. Giving effect to the above, Ext.P5 G.O dated 24.6.2011 was issued, along with Ext.P6 proceedings dated the same day, by the second respondent, inviting fresh applications from the persons concerned, who had come out successful in the Common Entrance Examination held on 9.2.2011 and the W.P.(C).17272/2011 9 Supplementary Examination conducted on 29.5.2011 and satisfied a minimum period of 'one year' service as on 5.1.2011 to become eligible to apply. The last date and time for receipt of the application was stipulated as 25.6.2011 at 3.30 pm, making it clear that the rank list will be made available in the website on 27.6.2011 and that the selection and allotment of the seats will be made by the second respondent through centralised allotment process on 27.6.2011 at 11.30 am. It is very much obvious that Exts.P5 and P6 have been issued by the concerned respondents, in conformity with the undertaking given before this Court while W.P.(C).11141/2011 and connected cases were disposed of. It is also relevant to note that such a step was necessitated because of the changed circumstances pursuant to the declaration of law by the Division Bench of this Court in Mohammed Riaz v. State of Kerala (2011 (2) KLT 294) and also to give effect to Ext.P3 order dated 29.4.2011 passed by the Apex Court in the concerned SLP. Ext.P3 interim order of the Apex Court reads as follows:- Permission to file the Special Leave Petition is granted. Issue notice in all the matters. No interim relief is granted. W.P.(C).17272/2011 10 In the affidavit filed in the High Court by the State, it is stated that only 15 in service candidates who applied both for general medical quota and in service quota qualified themselves in the entrance examination, several seats set apart for in service candidates and therefore, lapsed. In the circumstances, the State Government will hold an entrance examination now to fill the unfilled seats for the in service candidates so that they do not go waste. The 15 in service candidates who applied for general medical quota and in service quota need not appear for any examination to be conducted pursuant to this Court's order. They shall get the admission on the basis of the examination in which they have appeared. From the above, it is obvious that the Apex Court was much concerned about the probable lapse of the seats earmarked to the 'Service Quota'; which hence was sought to be remedied by directing the concerned respondents to hold a Supplementary Common Entrance Examinations to fill up the unfilled seats for the in-service candidates lest they should go waste. The mandate given by the Apex Court has to be given effect to. The petitioners admittedly have no right in respect of the quota W.P.(C).17272/2011 11 earmarked to the service segment, to an extent of 40%. The cause of action if any, can arise only if any vacancies are resulted in the Service Quota and they are left over to the General Merit Quota, for want of qualified in-service candidates. What should be the yardstick to select the in- service candidates, is a matter which comes within the power and competence of the State and the prescription is a 'policy decision'. Even going by the relevant norms already prescribed, the Government is having the power to relax the norms and as such, it is purely an internal matter with regard to which, there cannot be any grievance for the persons like the petitioners who do not belong to the zone of consideration now and there is absolutely no cause of action for the them in this regard. 12. The learned counsel for the petitioners sought to place reliance on the decision rendered by the Apex Court in Secretary, A.P.Public Service Commission v. B.Swapna and Others (2005 (4) SCC 154) and that of the Division Bench of this Court in Varghese Philip v. State of Kerala (2004 (1) KLT 581); dictum in which seldom applies to the case in hand. As per the former decision rendered by the Apex Court, with regard to the recruitment process and the W.P.(C).17272/2011 12 consequences resulted for the contesting candidates, who came within the zone of consideration of selection, the rules prescribing the qualifications were amended after commencement of the selection process. Similarly, as per the decision rendered by the Division Bench of this Court cited supra [ Varghese Philip v. State of Kerala (2004 (1) KLT 581 ) ], it has been held that, the eligibility criteria cannot be changed after the last date fixed for submission of the applications. 13. There is no doubt that the rules of the game cannot be changed after starting the game; but here, the question is whether such change was necessitated pursuant to any voluntary action on the part of the respondents and whether the so called change affected any vested right of the petitioners. Admittedly, since the persons like the petitioners do not belong to the category of 'in-service candidates' and since the change of norms stands confined to the selection of candidates among the 'in-service candidates' in respect of the 'Service Quota', there is no 'locus standi' for the petitioners to challenge the same. The cause of action for the petitioners if any, can arise only if any vacancy is left unfilled in the 'Service Quota W.P.(C).17272/2011 13 Category', to be allotted to the General Merit Quota, by virtue of the Note under Clause XI(B)(iii) of Ext.P1 prospectus. In the instant case, there was no dispute for anybody, when the selection was proceeded on the basis of Ext.P1 prospectus which provides for selection of the service candidates on the basis of their seniority, with no necessity to come through Common Entrance Test; which position got changed only on declaration of the law by the Division Bench in Mohammed Riaz v. State of Kerala (2011 (2) KLT 294). It was highly necessary to safeguard the interest of other in-service candidates as well, who were waiting for their turn based on their credentials with reference to the seniority in service and it was in the said circumstances, that observations were made by the Apex Court, as to the probable waste of the seats in the Service Quota; thus pointing out the necessity to have a Supplementary Test. It was to give effect to the above verdicts, that the matter required to be considered, leading to issuance of Exts.P5 and P6. This Court finds that the said proceedings are not assailable under any circumstances. 14. The learned Government Pleader appearing for the respondents submits that, pursuant to a common judgment W.P.(C).17272/2011 14 dated 23.6.2011 passed by this Court in W.P.(C).11141/2011, followed by Exts.P5 and P6 proceedings, the selection proceedings have already been finalized and that the entire vacancies earmarked for Service Quota to an extent of 40% could not be filled up for want of qualified hands and the residual vacancies have been allotted to the General Merit Quota. 15. In the above facts and circumstances, this Court finds that the challenge raised by the petitioners against Exts.P5 and P6 fails. Since the residual vacancies, on completion of the selection process in respect of the Service Quota, have already been allocated to the General Merit Quota, no further orders are called for, with regard to the other prayers sought for in the writ petition. The writ petition is dismissed accordingly. P.R.RAMACHANDRA MENON, Judge mrcs