IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 20570 of 2010(U) -------------------------- PETITIONER(S): --------------- 1. DR.SANDEEP BANSAL, AGED 32 YEARS, S/O. UMESH CHANDRA BANSAL, HOUSE NO.510, SECTOR 31, GURGAON, HARYANA-122 001. 2. DR.RAHUL YADAV, AGED 29 YEARS, S/O. PRATAP YADAV, HOUSE NO.510, SECTOR 31, GURGAON, HARYANA-122 001. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE SRI.K.V.GEORGE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. GOVT. PLEADER SHARI.T.B.HOOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2010, A/W. W.P.(C).No.21357/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).Nos.20570, 21086, 21357, 21494, 21612, 23600 & 24502 of 2010 ================== Dated this the 5th day of August, 2010 J U D G M E N T In all these writ petitions, the petitioners are doctors who aspire for admission to Super Speciality Post Graduate courses. Except in W.P.(C).No.24502/2010, the petitioners are challenging certain clauses of the prospectus issued for admission to Post Graduate courses in the Medical Colleges in Kerala, this year. 2. The clauses under challenge are III (iii), (iv) and (v), which read thus; “III. Eligibility for admission: (i) ...... xxx xxx xxx xxx (iii) Has done atleast one year compulsory rural service/Senior residency/Government service in any of the Government Medical Colleges/Government Hospitals in Kerala. (iv) In case sufficient number of candidates fulfilling the conditions as per (iii) above is not available, candidates who are otherwise qualified will also be considered, based on the merit in the entrance test. (v) Preference shall be given to the candidates, who had done MBBS or MD/MS from the Medical Colleges in Kerala, for preparation of rank list. In case, sufficient number of candidates in the above category is not available for admission for any reason, candidates from other states will be considered for the balance seats, based on the merit in the entrance test.” The petitioners challenge these clauses on various grounds. But it remains a fact that they have chosen to challenge these clauses after writing the entrance examination in accordance with the prospectus, w.p.c.20570/10 etc. 2 which they challenge, and results were published, when they found that in view of these clauses they are not likely to get admission to the courses. Since, prima facie, I was of opinion that such challenge cannot be entertained at this stage, since they had not challenged the prospectus at the inception, all these matters were posted for hearing on the question of maintainability of these writ petitions on that ground. Admittedly, all the petitioners wrote the written test in accordance with the prospectus. Results were also published. It is thereafter, they have chosen to challenge the clauses in the prospectus on the ground that the same are against the Supreme Court decisions on the subject. The learned counsel for the petitioner in W.P.(C).No.23600/2010 would take a contention that insofar as the clauses are against the statutory regulations issued by the Medical Council of India, the clauses themselves are void ab initio and, therefore, even though they have not challenged the same at the inception, they are entitled to challenge the same even after writing the entrance examination and finding that they were not likely to be admitted in accordance with the results of the entrance examination. He relies on the Supreme Court in Nar Singh Pal v. Union of India (AIR 2000 SC 1401), wherein a person who accepted compensation for his termination, turned around later on challenged the termination itself, which the Supreme Court found is permissible, insofar as since the w.p.c.20570/10 etc. 3 termination of service violated his fundamental rights, he cannot be held to have waived the fundamental rights. On the other hand, the learned Government Pleader appearing for the State would contend that they are estopped from challenging the provisions of the prospectus in view of the various decisions of the Supreme Court holding that a person who has chosen to participate in a selection process cannot later on turn around and challenge the selection process itself when he found that he has not succeeded in that selection process. The learned Government Pleader relies on the decisions of Supreme Court in Dhananjay Malik and others v. State of Uttaranchal and others [(2008) 4 SCC 171], Siraj v. High Court of Kerala [2006 (2) KLT 923 (SC)] and a decision of my mine in Ajith George v. State of Kerala [2006 (3) KLT 743]. 3. I have considered the rival contentions in detail. 4. The authorities cited by the learned Government Pleader are more than sufficient to hold that the petitioners having undergone the selection process on the basis of the prospectus cannot now challenge the basis of the selection process, viz., the prospectus, when they found that in the selection process they are not likely to succeed. But I have to consider the contention of the petitioner in W.P.(C). No.23600/2010 that insofar as the prospectus is violative of the provisions of the regulations of the Medical Council, the same is void w.p.c.20570/10 etc. 4 ab initio and therefore, the petitioner therein can challenge the same at any time. I am of opinion that that position is also covered by the decision in Dhananjay Malik's case (supra), wherein in paragraphs 7 to 9, the Supreme Court has held thus: “7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules. 8. In Madan Lal v. State of J&K1 this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. 9. In the present case, as already pointed out, the respondent- writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done. (underlining supplied) Therein the Supreme Court has gone to the extent of holding that even if the notification inviting applications is contrary to the rules, unless that notification itself is challenged at the inception, a person who has undergone the selection process on the basis of the notification, cannot w.p.c.20570/10 etc. 5 later on turn around and challenge the selection process itself. I am of opinion that despite the protestation of the learned counsel for the petitioner that the facts of this case are not similar to those of the Medical Council Regulations, I do not find any difference. The decision in Nar Singh Pal's case (supra) cited by the learned counsel for the petitioner is not on the basis of similar facts at all. That is a case where a person's services have been terminated, which cannot be equated with the admission process in medical colleges. Therefore, in view of the Supreme Court decision cited by the learned Government Pleader, I am of opinion that the petitioners cannot be permitted to challenge the provisions of the prospectus after having chosen to participate in the selection process in accordance with the provisions of the prospectus itself and finding that they are out of the fray in view of the the impugned clauses in the prospectus. In W.P.(C).No.24502/2010 the petitioner does not challenge the provisions of the prospectus as such. 5. Subsequent to the selection process the Government chose to amend the same prospectus to reduce the rigour of the clauses which are under challenge in these writ petitions. The petitioner in W.P.(C).No.24502/2010 challenges the amended prospectus. He would contend that although he has not challenged the prospectus as it existed at the time of issue of the prospectus, he is not estopped from w.p.c.20570/10 etc. 6 challenging the modified prospectus as it obtains now, is his contention. I am of opinion that the petitioner was not eligible to be selected on the basis of the original prospectus itself. Then there is no point in challenging the less rigorous modified prospectus and, therefore, the petitioner in W.P.(C).No.24502/2010 does not stand on a differing footing. In the above circumstances, these writ petitions are dismissed. 6. However, I make it clear that if the petitioners are eligible for admission otherwise, the dismissal of these writ petitions would not stand in their way of being admitted going by the subsequent amended prospectus as per Ext.P5 Government order in W.P.(C).No. 24502/2010. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge