IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 11148 of 2009(K) ----------------------------------------- PETITIONER(S): ------------------------ BINDU MOHAN, AGED 40 YEARS, W/O SYAM LAL, PUTHEN VEEDU, VENJARAMMOODU, THIRUVANANTHAPURAM. BY ADVS. MR.T.M.ABDUL LATHEEF, MR.A.MUHAMMED HASHIM. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 4. DR.JOSEPH GOMEZ, CIVIL SURGEON, COMMUNITY HEALTH CENTRE, POOVAR. 5. DR.REMA A.R., THQ HOSPITAL,PULINKUNNU, ALAPPUZHA. 6. DR.SUCHETA T.S., CIVIL SURGEON, DMOH, ALAPPUZHA. 7. DR. P.K.BEENA, ASSISTANT SURGEON, PHC, CHETTIKKADU, ALLEPPEY. 8. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 9. POST GRADUATE SELECTION COMMITTEE, REPRESENTED BY ITS SECRETARY, OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR. T.B.HOOD R4 TO R7 BY ADVS. MR.M.V.THAMBAN, MR.R.REJI, MR.B.BIPIN. R8 BY ADV.MR.ALEXANDER THOMAS, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11148/2009 K APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.R1A(5)28081/95/GT DTD. 13/12/1995 ISSUED BY THE 8TH RESPONDENT. P2: COPY OF THE RELEVANT PAGE OF THE FINAL GRADATION LIST OF ASSISTANT SURGEON FROM 1/04/1989 TO 31/12/1999. P3: COPY OF THE STATEMENT NO.GEC/B/B-24-17/1532 DTD. 29/12/2008 ISSUED BY THE ACCOUNTANT GENERAL (A&E), KERALA, TRIVANDRUM. P4: COPY OF THE SERVICE PARTICULARS OF THE PETITIONER. P5: COPY OF THE RELEVANT PORTION OF THE PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSES 2009. P6: COPY OF THE ORDER NO.EB2-87131/2008/DHS DTD. 13/2/2009 ISSUED BYTHE 2ND RESPONDENT. P7: COPY OF THE APPEAL PETITION DTD. 19/02/2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P8: COPY OF THE 2ND LIST (WRITTEN BY THE PETITIONER). P9: COPY OF THE ORDER NO.EB2-87131/08/DHS DTD. 26/03/2009 ISSUED BY THE 2ND RESPONDENT. P10: COPY OF THE PETITION DTD. 1/04/2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P11: COPY OF REVISED PLACEMENT LIST OF MEDICAL OFFICERS. RESPONDENT'S EXHIBITS: R4(A): COPY OF THE EXTRACT OF THE PROSPECTUS ISSUED BY THE DIRECTOR OF MEDICAL EDUCATION. R4(B): COPY OF THE REVISED PLACEMENT LIST OF MEDICAL OFFICERS OPTED IN ADMINISTRATIVE CADRE. R4(C): COPY OF THE SELECTION MEMO IN RESPECT OF THE 4TH RESPONDENT DTD. 06/04/2009. R4(D): COPY OF THE ADMISSION CHIT DTD. 18/04/2009 IN RESPECT OF THE 4TH RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI,J. ------------------------- W.P ( C) No.11148 of 2009 -------------------------- Dated this the 6th July,2009 J U D G M E N T Petitioner is working as a Civil Surgeon in the Community Health Centre, Vellarada. She had entered Health Service on advise by the Public Service Commission, as an Assistant Surgeon. Respondents 4 to 7 were also advised along with the petitioner. Going by the Public Service Commission's rank list respondents 4 to 7 are juniors to the petitioner. This is further demonstrated with reference to Exhibit-P2. 2. Admissions to the Post Graduate Medical Courses is regulated by the prospectus, a copy of which has been produced and marked as Exhibit-P5. Clause VII (a) (3) of the same, around which is generated the controversy reads as follows: “The applicants under Service Quota should be regular staff under HSD/MES/IMS/Municipal Services and should have completed a minimum period of service under Government of Kerala as given below to become eligible to apply - 2 years for Lecturers W.P ( C) No.11148 of 2009 2 in Medical Education Service and 5 years for other state services. The total service will be reckoned as on the date of notification for inviting application. Unauthorised absence or absence due to Leave without Allowance ( including leave on medical ground) will not be counted for the purpose of calculating the minimum service and for the seniority. Inter se seniority of actual Physical service, excluding leave without allowance will be the criterion for selection, if more than one candidate applies for the course and if, the difference in their length of service is more than 90 days. If the difference is below 90 days, the PSC seniority will be the criterion. In case sufficient number of service candidates with 2 and 5 years of minimum services as above are not available in any category, the period of minimum service can be relaxed by the Government before the date of allotment.” 3. It is contended that if the difference in the length of service between more than one candidate who applies for the course is less than 90 days then PSC seniority will be the criterion. The length of service is to be determined by excluding from consideration unauthorized absence or absence due to leave without allowances (including leave on medical ground). 4. The difference in the length of service between the petitioner on the one hand and respondents 4 to 7 on the other is less than 90 days. This position is not W.P ( C) No.11148 of 2009 3 controverted by the respondents. The stand taken by the 3rd respondent in her counter affidavit as also by the contesting respondents is that the applicants under the Health Service Quota are not expected to apply for any particular faculty. They exercise options only when they are called for counseling. Therefore the question of more than one candidate under the Health Services Quota applying for one seat does not arise, according to them. Reference is made in this regard to sub clause (3) of clause VII which deals with the Lecturer Quota and it is pointed out that Lecturers in Medical Education Service, in a particular subject/speciality shall primarily be eligible to be considered for a Post Graduate Course in the same subject. Exception is in relation to Lecturers in the subjects which are mentioned therein. It is contended that the aforementioned clause VII (a) (3) would therefore apply only in relation to applicants under the Lecturers Quota who are entitled to apply for a particular seat and not to the applicants under the Health Service Quota. This in sum and substance is the stand taken by the respondents. W.P ( C) No.11148 of 2009 4 5. I am not in a position to accept the stand taken by the respondents. A reading of Clause VII(a) (3) gives the impression that the same applies to the applicants under the Service Quota which comprises of the Health Services Department also. There is no difficulty in applying the said clause to the applicants from the Health Services Department as well. A seniority list is to be prepared amongst the applicants under the Health Services Quota and they should be permitted to opt for the seats in the order of their seniority. In reckoning the seniority, if it is found that the difference in the length of service is less than 90 days then the seniority will be determined with reference to the Public Service Commission's criterion. This will mean that if the total length of service between any two applicants is less than 90 days then their inter se seniority will be determined with reference to their ranking in the Public Service Commission's Rank List. It is difficult to appreciate the contention that the clause VII (a) (3) will not apply in the case of applicants under the Health Service Quota. W.P ( C) No.11148 of 2009 5 6. It is clear from the counter affidavit filed by the respondents that the petitioner has not been admitted to any Post Graduate Course on the ground that the total length of service of respondents 4 to 7 is one day more than that of the petitioner. That is to say whereas the petitioner joined service on 6.2.1996 the contesting respondents joined on 5.2.1996. This is therefore a typical case where their inter se seniority should have been determined on the basis of their ranking in the Public Service Commission's List, since the difference in the length of their service is less than 90 days. That has not been done. The matter will therefore have to be redone but taking note of the fact that admissions have been completed otherwise, fresh exercise should be confined only to the petitioner and respondents 4 to 7. 7. I take note of the submission made by the learned counsel for the petitioner that petitioner would have opted for MD Gynaecology and if it were not available then she would have opted for MS Gynaecology or in the alternative , for Diploma in Gynaecology and Obstetrics. W.P ( C) No.11148 of 2009 6 8. I further taken note of the submission of the learned Government Pleader that fresh exercise involving all candidates from the Health Services Quota would prove to be cumbersome and at any rate since the last date for effecting admissions are over, it may be prove to be detrimental for all persons concerned. Petitioner had approached this Court at the earliest possible time on the second day of April, 2009 and this Court had passed an interim order making it clear that admissions granted on the basis of seniority in the Service Quota will be subject to the result of the writ petition and subject to the claim of the petitioner. If the petitioner is otherwise eligible for admission to Post Graduate Course, the same should not be denied, by reason of the fact that admissions have been completed during the pendency of the writ petition. Further the question of invoking clause VII (a) (3) specifically arises only in the case of petitioner and respondents 4 to 7. Accordingly, writ petition is disposed of with the following directions. W.P ( C) No.11148 of 2009 7 i. Third respondent shall determine the seniority amongst the petitioner and respondents 4 to 7 in the manner mentioned above. Petitioner shall be treated as senior to respondents 4 to 7. ii. On the said basis, the petitioner and respondents 4 to 7 shall be called upon to give options, with reference to the situation prevailing on the date on which respondents 4 to 7 and the petitioner were called for counseling. iii. Petitioner shall be permitted to opt for a seat which was then available from among those seats which have been opted by respondents 4 to 7. She shall be allotted a seat and the remaining three seats shall be allotted in accordance with the seniority amongst respondents 4 to 7. The entire process shall be completed within two weeks from the date of receipt of a copy of this judgment. (V.GIRI,JUDGE) ma W.P ( C) No.11148 of 2009 8 W.P ( C) No.11148 of 2009 9