IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 03.09.2009 Coram THE HONOURABLE MR. JUSTICE P. JYOTHIMANI W.P. No.17766 of 2009 and M.P. No.1 of 2009 Dr. M. Malarvizhi ... Petitioner ..Vs.. 1. The State of Tamilnadu, rep. by the Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai – 9. 2. The Selection Committee, rep. by the Secretary to Medical Education, Kilpauk, Chennai – 10. 3. The Director of Medical Education, Kilpauk, Chennai – 10. ... Respondents Writ Petition under Article 226 of The Constitution of India, praying to issue a writ of mandamus, directing the respondents to give the vacancy in the Super Speciality course for the year 2009- 2010 arisen under the service category because of the move of Dr. Senthil Kumar the first candidate under the service category to the open category due to the non joining of Dr. Rajarajan under the open category in the Super Speciality course for the year 2009-2012 to the petitioner as she is the first wait listed candidate for the above course drawn by the respondents. For Petitioner : Mr. R. Singaravelan For Respondents : Ms. Dhakshayani Reddy, Govt. Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard learned counsel appearing for the petitioner and Ms.Dakshayani Reddy, learned Government Advocate appearing for the respondents. 2. This writ petition has been filed for a direction against the respondents to give the vacancy in the Super Speciality course for the year 2009-2010 arisen under the service category because of the move of Dr. Senthil Kumar, the first candidate under the service category to the open category due to the non joining of Dr. Rajarajan under the open category in the Super Speciality course for the year 2009-2012 to the petitioner. 3. It is an admitted fact that there were eight seats, of which the four seats are to be selected from non-service category and four seats are to be selected in the service category. The first four candidates were selected in non-service category viz. Biggs Saravanan, Rajarajan, Prakash Shankar and Jagadesan and the fifth candidate in the open merit list is the service candidate one Senthil Kumar. As per the service merit list, the said Senthil Kumar and three others viz. Arul Selvan, Arun and Sivasubramaniam were selected. 4. It is the case of the petitioner that the second person in the open merit list T. Rajarajan from non-service category has not joined the course. It is averred in the affidavit filed by the petitioner that the said Rajarajan has not chosen to join even on the last date fixed for him viz. 17.8.2009. He has not even chosen to get the allotment order till the expiry of 12.8.2009 and not paid the fees, which has to be paid on the date of counseling on 12.8.2009 at 5 p.m. and therefore, he has actually not joined and in that event, as per the Rules viz. Clause 45(a) of the prospectus, the same has to be filled up from the service merit list who has already been selected. If the said Senthilkumar moves to the open merit list, naturally, the petitioner, who is the fifth person in the service merit list, will have to move to the fourth place and he will be entitled for selection. 5. Learned Government Advocate on instructions submitted that it is true as per the Clause 45(a), but, however, the writ petition is premature in the sense that the candidates are given time till 30th September, 2009 for completion of the counseling. On that date only it will be known as to whether the second counseling should be conducted or not. It is only on 30.9.2009, the position will be identified and in that event, if the second person in the open merit list has not joined, the fifth person, who is the service candidate will move, in which event, the person in the fifth place will move to the fourth place and in that case, the petitioner will be considered. https://hcservices.ecourts.gov.in/hcservices/ It is made clear that in the event of conducting of second counseling due to non joining of the non-service candidate, for filling up the said place, clause 45(a) of the prospectus will be followed and the petitioner will be considered. 6. Recording the statement made by the learned Government Advocate, the writ petition is disposed of. Consequently, the connected M.P. is closed. No costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Secretary to Government, The State of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai – 9. 2. The Selection Committee, rep. by the Secretary to Medical Education, Kilpauk, Chennai – 10. 3. The Director of Medical Education, Kilpauk, Chennai – 10. +1 cc to Mr.R.Singgaravelan, Advocate, SR.No.44493 W.P. No.17766 of 2009 and connected M.P. LA {CO} TP/7.9.2009. https://hcservices.ecourts.gov.in/hcservices/