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. 17282 of 2011(I) -------------------------- PETITIONER: --------------- DR. BIJI K.P., LECTURER, DEPARTMENT OF ANAESTHESIOLOGY, GOVERNMENT MEDICAL COLLEGE, KOZHIKODE. BY ADV. ]RI.R.K.MURALEEDHARAN RESPONDENTS --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MEDICAL EDUCATION KERALA AND THE CONVENER OF POST GRADUATE SELECTION COMMITTEE FOR SELECTION OF CANDIDATES FOR POST GRADUATE, GRADUATE MEDICAL COURSES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV. MR. T.B. HOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2011 ALONG WITH W.P.(C )NO. 17316 OF 2011, THE COURT ON THE 04/07/2011 DELIVERED THE FOLLOWING: WP(C).No. 17282 of 2011(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : A TRUE COPY OF THE PROCEEDINGS OF THE JOINT DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM DATED 29.07.2009. EXT.P2 : A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 22.05.2010. EXT.P3 ; A TRUE COPY OF THE RELEVANT PORTION OF THE PROSPEPCTUS ISSUED BY THE 2ND RESPONDENT. EXT.P4 : A TRUE COPY OF THE NOTIFICATION DATED 5.1.2011 ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATION. EXT.P5 : A TRUE COPY OF THE RESULTS PUBLIHED BY THE COMMISSIONER FOR ENTRANCE EXAMINATION. EXT.P6 : A TRUE COPY OF THE INTERIM ORDER ISSUED BY THE HON'BLE SUPREME COURT OF INDIA DATED 29.4.2011. EXT.P7 : A TRUE COPY OF THE RELEVANT PAGES OF THE G.O.(MS) 93/09/H& FWD DATED 30.3.2009 EXT.P8 : A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 6.4.2011 EXT.P9 : A TRUE COPY OF THE G.O.(RT) 2356/11/H &FWD DTD.24.6.2011 /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C)No.17282 & 17316 OF 2011 ......................................................................... Dated this the 4th July, 2011 J U D G M E N T The petitioners are aspirants for the Medical PG admission being conducted for the current year. The main challenge is with regard to the clause VII (a) (2) of Ext.P1 Prospectus, whereby a minimum service of 'one year' is stipulated to qualify for admission to the Medical PG Course in the 'Service Quota' in respect of 'Medical Education Service' candidates. In W.P.(C) 17282/2011, there is a further challenge in respect of the relevant clause in the prospectus, whereby 'Regular service' is insisted to qualify the candidates under the Service Quota, making it clear that 'Temporary Service' will not be counted. (Exhibits are referred to herein, as marked in W.P.(C) No.17282 of 2011). 2. As mentioned above, both the petitioners are working as Lecturers and belong to Medical Education Service. W.P.(C)No.17282 & 17316 OF 2011 2 Admittedly, both the petitioners are having less than one year regular service as on the relevant date and are not qualified for participating in the process of selection in respect of the 'Service Quota' by virtue of the specific terms in the prospectus. 3. By virtue of the Kerala Medical Officers Admission to Post Graduate course under Service Quota Act 2009 (Kerala Act 29 of 2008), 40% of the total seats for the Medical PG Degree/Diploma courses are earmarked for candidates belonging to various services such as Health Service/Medical Education Service etc. In conformity with the provisions in the statute, Ext.P1 prospectus was issued in connection with the selection process for the Medical PG admissions for the current academic year. As per the norms stipulated, the minimum service to qualify under 'Service Quota' in respect of Medical Education Service is 'one year' Regular Service, whereas in the case of remaining categories, it is 'four years'. Even though the petitioners are not having the requisite minimum Regular Service of one year, they being entitled to contest for 'General Quota', had participated in the common entrance test conducted on W.P.(C)No.17282 & 17316 OF 2011 3 09.02.2011 and have come out successful. 4. Going by the prospectus, the selection in respect of 'Service Quota' was being pursued purely on the basis of seniority from the eligible hands satisfying the minimum service. But the relevant clause in this regard dispensing with the Common Entrance Test was subjected to challenge at the instance of some candidates before this Court, which culminated in the verdict passed by this Court in Mohammed Riaz v. State of Kerala ( 2011 (2) KLT 294) , whereby it was made clear that even in the case of Service Quota, the candidates had to come out successful in the Common Entrance Test. Alleging that the said verdict shattered the equilibrium and that several candidates could not participate in the Common Entrance Examination held already, (as they were not required to attend the test under the prospectus) and on such other grounds, the above verdict of this Court was subjected to challenge before the Supreme Court. Though the SLP was admitted, interim order was declined as per Ext.P6. It was observed by the Apex Court that only '15' candidates in the Service Quota got qualified in the W.P.(C)No.17282 & 17316 OF 2011 4 said test and most of the seats earmarked in this sector were to be lapsed. In the said circumstance, the Apex Court directed the respondents to conduct a supplementary examination to safeguard the interests of all concerned, lest the seats earmarked for the “Service Quota' should go in waste. 5. Pursuant to the said direction, a supplementary examination was conducted on 29.05.2011 and several other candidates came out successful, who were also to be considered along with the other candidates who became successful in the Entrance Examination held already on 09.02.2011. It was to give effect to the above verdict /order that the matter was considered by the Government as well, deciding to provide some relaxation with regard to the minimum qualifying service in respect of specific category, to the prescribed extent. Based on the said decision, a batch of writ petitions ( such as W.P.(C) Nos. 11141 of 2011 and connected cases) were disposed, as per the common judgment dated 23.06.2011, recording the submissions made from the part of the Government and giving appropriate relief to the concerned writ petitioners. W.P.(C)No.17282 & 17316 OF 2011 5 6. Giving effect to the decision taken by the Government as above, finding the necessity to have provided relaxation (invoking the power vested with the Government) Ext. P9 Government Order in W.P.(C) 17292 of 2011( Ext.P6 in W.P.(C) 17316 of 2011) was issued on 24.06.2011, whereby relaxation was given with regard to the minimum qualifying service as stipulated in Clause VII (a) (2) of the Prospectus for admission to the Medical PG Degree/Diploma Course, subject to the conditions as stipulated therein which are extracted below: “1. The applicants under Service quota should be regular staff under Health Service Department/Medical Education Service/Insurance Medical Service/Municipal Services and should have completed a minimum of one year service in their respective services, to become eligible to apply. 2. The candidates shall execute a bond to serve Government in respective Department for the period mentioned in the Prospectus and in addition for a further period equal to the difference between numbers of years completed in service and W.P.(C)No.17282 & 17316 OF 2011 6 the years required to reach the eligibility criteria as stipulated in the existing Prospectus, if the candidate has the necessary service left to fulfill that obligation. If not the candidate will serve Government till the end of his/her service. 3. The admissions already made under Service Quota should not be interfered with.” As per the above Government Order, the minimum qualifying service of 'four years' in the other categories like 'Health Service' has been brought down to 'one year', whereas in the case of 'Medical Education Service' (to which the petitioners do belong) it remains unchanged as 'one year' Regular Service as before. It is also mentioned in the said Government Order that the admissions already made under the Service Quota would not stand interfered with, by virtue of the modification made to the limited extent. 7. The question is whether the petitioners stand adversely affected because of issuance of Ext.P9 Government Order in any manner. It is very much relevant to note that the stipulation of 'one year' Regular service for the inservice candidates in respect W.P.(C)No.17282 & 17316 OF 2011 7 of the 'Medical Education Service' as contained in Ext.P9 Government Order dated 24.06.2011 was very much there in Ext.P1Prospectus as well, which was admittedly issued on '04.01.2011'. The petitioners were very much aware of the said stipulation and had no complaint whatsoever and they participated in the Entrance Examination held on 09.02.2011 with the full knowledge and understanding as to the limitation prescribed by virtue of the said clause. There was no challenge against the said clause contained in the Prospectus till this month, when they sought to approach this Court on the eve of allotment, seeking to challenge the said clause in the Prospectus and also the similar one as contained in Ext.P9 Government Order. Similar course is pursued by the petitioner in W.P.(C) 17282 of 2011 in respect of the clause contained in the Prospectus stipulating the required service as 'Regular Service', making it clear that 'Temporary Service' will not be counted as qualifying service. 8. In the above circumstance, this Court does not find these writ petitions as fit cases to be interfered with, invoking the W.P.(C)No.17282 & 17316 OF 2011 8 discretionary jurisdiction of this Court under Article 226. Interference is declined and both the writ petitions are dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk