IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 WP(C).No. 17724 of 2011(M) -------------------------- PETITIONER(S): ----------------------- 1. DR.GANESH DAS, S/O.G.RAMADAS, TUTOR, DR.PADIAR MEMORIAL HOMOEO COLLEGE, CHOTTANIKKARA, ERNAKULAM DISTRICT. 2. DR.K.NARAYANA PAI, S/O.KRISHNA PAI, TUTOR, DR.PADIAR MEMORIAL HOMOEO COLLEGE, CHOTTANIKKARA, ERNAKULAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): ------------------------- 1. THE CHAIRMAN/CONVENOR OF THE SELECTION COMMITTEE FOR ADMISSION TO POST GRADUATE DEGREE COURSES IN HOMOEOPATHY (M.D.HOMOEO), KERALA 2011-12, THIRUVANANTHAPURAM-695009. 2. THE PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM, THIRUVANANTHAPURAM, PIN-695009. 3. STATE OF KERALA, REP. BY ITS SECRETARY TO HEALTH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 4. DR.BALALEKSHMI V., 'SARAS', KOOTTIKKADA P.O., KOLLAM-691020. 5. DHANYA D.M., 'DHANYA BHAVAN', KARALI, PARASSALA P.O., THIRUVANANTHAPURAM-695502. R2 & R3 BY GOVT. PLEADER SRI.ROSE MICHAEL R4 BY ADV. SMT.REKHA VASUDEVAN R5 BY ADV. SRI.BLAZE K.JOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2011, ALONG WITH WPC NO. 17799 OF 2011 WPC NO. 18013 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.17724/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR ADMISSION TO THE POST GRADUATE DEGREE COURSES IN HOMOEOPATHY (MD (HOMOEO) FOR THE YEAR 09-10. P2:- COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR THE ENTRANCE EXAMINATION FOR ADMISSION TO THE POST GRADUATE DEGREE COURSES IN HOMOEOPATHY (MD (HOMOEO) FOR THE YEAR 11-12. P3:- COPY OF THE LIST OF CANDIDATES WITH RESPECT TO ADMISSION AT GOVERNMENT HOMOEOPATHIC MEDICAL COLELGE, THIRUVANANTHAPURAM. P4:- COPY OF THE LIST OF CANDIDATES WITH RESPECT TO ADMISSION AT GOVERNMENT HOMOEOPATHIC MEDICAL COLELGE, KOZHIKODE. RESPONDENT'S EXHIBITS R5(1):- COPY OF THE ADMISSION LETTER DTD. 2.6.2011. R5(2):- COPY OF THE RECEIPT DTD. 2.7.2011 OF THE GOVERNMENT HOMOEOPATHY MEDICAL COLLEGE THIRUVANANTHAPURAM. R5(3):- COPY OF THE FEES RECEIPT OF PTA GOVERNMENT HOMOEOPATHY COLLEGE THIRUVANANTHAPURAM. TRUE COPY P.S. TO JUDGE tss C.K.ABDUL REHIM,J. --------------------------------- WP.C.Nos.17724 OF 2011 ,17799 OF 2011 & W.P.C. NO.18013 OF 2011 --------------------------------- Dated this the 20 th day of December , 2011 J U D G M E N T Subject matter involved in all the above 3 writ petitions relates to admission to Post Graduate Courses in Homeopathic Medicine (MD Homeo) for the year 2011-2012. Going by the Prospectus (Ext.P2 in WP(C) No.17724/2011), the academic qualifications prescribed for admission to the MD course is DHMS degree or its equivalent. Selection of candidates, except for certain reserved quota, is based on their ranking in the Entrance Examination results, conducted by the Commissioner of Entrance Examinations. From clause 5 of the Prospectus, it is evident that, altogether 36 seats are available in 3 distinct subjects, distributed between 2 Government Homeopathic Medical colleges at Trivandrum and Kochi, at 6 seats for each subjects. Tabulations contained in clause 5 with respect to 'distribution of seats' would indicate the number of seats alloted in each subject WPC.17724/2011 & conn. cases. 2 to different categories like, All India General Merit, Kerala General Merit, Reservation for scheduled caste/scheduled tribe candidates, Reservation of seats among teachers working in Private Homeopathic Medical Colleges, Reservation of seats among teachers working in Government Homeopathic Medical Colleges, Reservation of seats among Rural Service Candidates and Reservation of seats for social and economically backward communities. Clause 5.4.a deals with distribution of seats reserved for teachers working in Private Homeopathic Medical Colleges and clause 5.4.b deals with the distribution of seats among teachers working in the Government Homeopathic Medical Colleges. 5 seats are reserved each for teachers working in private homeopathic medical colleges and in Govt. Homeopathic Medical Colleges. The petitioners in these writ petitions are teachers working in private Homeopathic Medical Colleges. There are 3 Medical Colleges in the private sector functioning within the state. From the tabulation in the Prospectus with respect to distribution of seats, it is evident that the reserved quota for teachers working in Private Medical Colleges is distributed on WPC.17724/2011 & conn. cases. 3 subject wise to different colleges in the private sector. 2. The petitioners in these cases applied for the admission in the quota reserved for teachers working in the Private Homeopathic Medical colleges. They were declined selection in different subjects in 2 Government Medical Colleges, where Post graduate courses are conducted. Exts.P3 and P4 in WP(C) 17724/2011 is the list of selected candidates in both colleges. In WPC 17724/11 and in WPC 18013/11, the petitioners are seeking to quash the select list to the extent which they were denied admission and also seeking direction to conduct fresh process of selection and to admit the petitioners to the seats reserved for teachers in the colleges in which they are teaching. It is stated that they were denied admission based on the reason that they are not teachers working in the subjects concerned. Contention of the petitioners in those cases is that, going by explanations given in clause 5.4.b of the Prospectus and the note appended thereto, the petitioners are eligible for admission to Post Graduate Course in any of the subjects, irrespective of the fact that they are working as teachers in any different subjects. WPC.17724/2011 & conn. cases. 4 3. For a better appreciation of the contention it will be beneficial to reproduce clause 5.4.a and 5.4.b of the prospectus, which reads as follows: “5.4.a.Reservation of seats among Teachers working in Private Homoeopathic Medical Colleges: There are 5 seats reserved for the teachers of the private Homoeopathic Medical Colleges as specified below. One seat in Materia Medica and one seat in Homoeopathic Philosophy are alloted to Dr.Padiar Memorial Homoeo College, Chottanikkara, and one seat in Homoeopathic Philosophy is alloted to Shree Vidyadhiraja Homoeo Medical College, Nemom, Thiruvananthapuram and one seat in Materia Medica and one seat in Casetaking & Repertorisation is allotted to ANSS Homoeopathic Medical College, Kottayam. 5.4.b. Reservation of seats among teachers working in Govt. Homeopathic Medical Colleges: There are 5 seats reserved for the Govt. College Teacher's Quota as follows. 1 seats in Materia Medica, 2 seats in Homoeopathic Philosophy , 2 seats in CaseTaking & Repertorisation. Option of the subject will be allowed only for the teachers of concerned subject. If there is no sufficient applicant in the concerned subject, the teachers who have taken other subject where there is no P.G. (ie, Department Pharmacy, Practice of Medicine, Anatomy, Physiology & Biochemistry , Community Medicine (SPM), Gyneocology, Surgery, Forensic Medicine & Toxicology and Pathology) can be opted for the above seats. College will be same where they are working. WPC.17724/2011 & conn. cases. 5 Note Admission to Teachers Quota for the Teachers in Government and Aided Homoeopathic Medical Colleges will be based on the common seniority in service , irrespective of the department in which the teachers are posted now.” 4. Contention of the petitioners in both the above said cases is that, provisions contained in clause 5.4.b to the extent it says that if there is no sufficient applicants in the concerned subject, the teachers who have taken other subjects where there is no PG can be opted for such seats, will be applicable in the case of teachers working in the Private Homeopathic Medical Colleges also. According to the petitioner, there is no difference between teachers working in private Medical colleges and Government Medical Colleges, with respect to qualification of BHMS Degree with respect to subjects in which there is no P.G. Course is available. Hence it is contended that, exemption granted with respect to teachers of Government Colleges who have taken other subjects in which there is no P.G should have been made equally applicable in the case of teachers working in private medical colleges, as per clause 5.4 (b). In order to emphasize such a contention the petitioners are relying on the WPC.17724/2011 & conn. cases. 6 note attached to clause 5.4(b) wherein it is stated that, admissions to teachers quota for teachers in both Government and Aided Homoeopathic Medical colleges will be based on common seniority in service, irrespective of the department in which the teachers are posted. Petitioners are also relying on the second limb of clause 7 in the Prospectus which states that, admission to seats reserved for candidates under category 5.4 and 5.5 will be made on the basis of seniority among the concerned and that there will not be an Entrance Examination for this purpose. 5. Factual aspects enumerated reveals that the petitioners in WPC.No.17724/11 are teachers working in Dr. Padiyar Memorial Homoeo Medical College, which is a private medical college. As per distribution of seats in Ext.P2 the reserved quota include one teacher from the said college for the subject of Materia Medica and one teacher for the subject of Homoeopathic philosophy. Admittedly the petitioners 1 and 2 are teachers in the subject of 'practice in medicine' and 'anatomy' respectively. So also the petitioner in WPC.18013/2011 is a teacher in Sree WPC.17724/2011 & conn. cases. 7 Vidhyadhiraja Homoeopathic Medical College and as per the distribution of seats only one seat in the subject of Homoeopathic philosophy is reserved for the said college. Admittedly the petitioner is working as Professor and Head of the Department in 'Practice in Medicine'. It is evident from Ext.P3 in WPC.No.17724/11 that the respondents 4 and 5 in that case were selected as candidate from the Kerala General merit against the seats earmarked with respect to Dr.Padiyar Memorial Homoeo Medical College. Presumably it is on the basis that no candidate in the reserved quota of teachers from that college is available in the subject concerned. In this regard it is pertinent to note that there a clause included in Ext.P2 to the effect that; “ In the event of any seats falling vacant under any category on account of non availability of eligible candidates, such seats shall be filled up with eligible candidate from the list of Kerala General merit.” 6. In the case of the petitioner in WPC.No.18013/11 it is evident from Ext.P4 that the 4th respondent in that case is selected as the candidate from the quota earmarked for Sree Vidhyadhiraja Homeopathic Medical College. Admittedly the 4th WPC.17724/2011 & conn. cases. 8 respondent is a teacher working in the subject of 'Homeopathic Philosophy' which is a course allotted as per the distribution to the said college. But contention of the petitioner is that she is senior to the 4th respondent and going by the note appended to clause 5.4.(b) she should have been given admission in preference to the 4th respondent. 7. In WPC.No.17799/11 the petitioner is a teacher working in the department of 'Materia Medica' in Sree Vidhyadhiraja Homeopathic College. But going by the distribution in the prospectus the reservation earmarked for the said college is in the subject of 'Homeopathic philosophy',. According to the petitioner admission given to additional respondents 4 and 5 in that case out of Kerala General merit against the vacancy earmarked for Dr.Padiyar Memorial Homeo Medical College is to be declared as illegal. Petitioner in that case contended that reservation ought to have been provided for teachers working in private Homoeopatic Medical Colleges, treating them as single unit. It is contended that since the teachers in the subject concerned was not available from Dr.Padiyar Memorial Homoeo WPC.17724/2011 & conn. cases. 9 Medical College the petitioner ought to have been admitted for the PG course from the quota ear marked for that institution since the petitioner is working in the subject of Materia Medica which is allotted to Dr. Padiyar Memorial Homoeo Medical College. It is also contended that teachers working in private medical colleges the petitioner therein was the only candidate available in the subject of 'Materia Medica'. Hence the petitioner seeks for a direction to admit her in the seats distribution of other private medical colleges and she is challenging the admission given to the students from Kerala General Merit against those reserved seats earmarked for private medical colleges. 8. While considering the challenge raised in WP(C).Nos. 17724/2011 and 18013/11 it is pertinent to note that the petitioners in both these cases have not challenged validity of the Prospectus for the year concerned. They have applied for admission to the PG course and they have attended the interview conducted. Sri.Sathyanatha Menon, learned counsel appearing for the petitioners had drawn my attention to Ext.P1 which is the WPC.17724/2011 & conn. cases. 10 prospectus published with respect to the academic year 2009-10. It is pertinent to note that clause 5.4 (b) was amended in the present Prospectus specifying that option of the subject will be allowed only for the teachers in the concerned subject and only if there is no sufficient applicants in the concerned subject available, the teachers who have taken other subject where there is no PG can be opted for the subjects earmarked for Government teachers. According to him, the exemption provided thereunder is equally applicable in the case of teachers of private medical colleges. It is also contended that the above aspect is clear from the note appended to 5.4.(b) which clarifies that admission to teachers quota for the teachers in Government and Aided Homoeopathic Medical Colleges will be based on the common seniority in service irrespective of the department in which the teachers are posted. 9. Sri. J. Harikumar learned counsel appearing for the petitioner in WP(C).No.18013/11 contended that going by the note attached to clause 5.4 (b) the seniority in service among the teachers should have been the prime criteria and the WPC.17724/2011 & conn. cases. 11 petitioner being the senior, ought to have been given preference than the 4th respondent. 10. As mentioned above, since there is no challenge against the Prospectus, for adjudication of the issue involved an interpretation of the clauses contained in the prospectus is required. It is evident from clause 5, that category wise distribution of seats in the 3 distinct subjects in the PG course are enumerated. A chart regarding distribution is mentioned in the prospectus. The chart indicates that reservation in the category of teachers comes within clause 5.4. (a) and 5.4.(b). The name of the category is mentioned as, “teachers in the subjects concerned working in the private homoeopathic medical colleges in Kerala” and as “teachers in the subjects concerned working in the Government Homoeopatic Medical colleges in Kerala” respectively. From the said categorisation it is evident that the reservation is mentioned for teachers working in the subject concerned. In the explanation given with respect to the two reserved categories, as distinct from section 5.4.(a) there is a specific mention in clause 5.4. (b) to the effect that option of WPC.17724/2011 & conn. cases. 12 the subject will be allowed only for the teachers of concerned subject and if there is no sufficient applicants in the concerned subject the teachers who have taken other subject where there is no PG can be opted for the above seats. It is further stated that the college will be the same where they are working. In the counter affidavit filed by the Government in WP(C).No.18013/11 as well as in the statement filed in WP(C).No.17724/11 it is specifically mentioned that the exemption provided for admission to teachers who have taken other subjects on the event of dearth of sufficient applicant in the concerned subject is provided only in the case of teachers working in the same Homoeo Medical colleges. On analysis of provisions contained in the Prospectus, it is evident that the exemption clause provided under section 5.4 (b) applicable in the case of teachers of private medical colleges, is not provided under section 5.4 (a). Nothing is indicated to say that the Government intended to include the exemption clause in the case of teachers of private Medical colleges also. Contention of the petitioners seems to be that there was no reasoning or rationale in discriminating teachers of private Medical colleges WPC.17724/2011 & conn. cases. 13 with respect to the exemption clause provided. As observed above since there is no challenge against any of the clauses in the Prospectus this court of the view that such a question does not arise for consideration. Learned counsel appearing for the petitioners raised a contention that such an interpretation given to the prospectus will result in discrimination and violation of Article 14 of the Constitution of India. According to them, there is no reasonable nuxes to classify the different groups and to treat them in different parameters. But it is pointed out on behalf of the contesting respondents that the decision taken by the Government in this regard has got justifiable reason and there is rationale behind such decision. It is pointed out that the exemption is granted only if sufficient applicant in the concerned subject are not available from the Government college to which any particular subject is earmarked in the reserved quota. Further it is pointed out that the exemption is available only with respect to teachers working in other subjects where there is no post graduate course is provided through out the State. According to the respondents it is evident that the general WPC.17724/2011 & conn. cases. 14 rule of reservation prescribed in the prospectus is to the effect that the quota is reserved only for teachers working in the subject concerned. The exemption is limited only with respect to Government colleges because the Government colleges alone are provided with post graduate courses. It is with an intention to improve the quality of teachers who have to teach the students of the post graduate course that such a facility is provided restricting to the teachers in the Government colleges, is the contention. The teachers belonging to the Government Medical colleges and private Medical colleges constitute two distinct groups and the reservation comes within two distinct categories. Therefore exemption provided with respect to one of such categories would not amount to any discrimination and it will not violate Article 14 of the Constitution of India, is the contention raised. While considering the rival contention this court of the view that on the literal and objective interpretation given to clause 5.4.(a) and 5.4.(b) of the prospectus it can be safely held that the exemption clause provided in 5.4.(b) is not applicable to clause 5.4.(a) because it is evident that the reservation in the WPC.17724/2011 & conn. cases. 15 two categories are intended for teachers in the subject concerned and that the exemption is provided only in the category of teachers of Government Medical colleges. Challenge based on the interpretation of the note attached to clause 5.4.(b) also is of no use because it prescribes only about preparation of common seniority list among teachers in Government and Aided medical colleges. But that does not mean to say that based on the common seniority any teacher working in any specified subject will get preference for admission in the PG course for a particular subject if candidate junior in rank is available in the subject concerned itself. So also nobody in the common seniority list will be entitled for appointment against the reserved quota of the other category merely because he is senior considering the length of service. Preparation of common seniority list contemplated under note to clause 5.4. (b) is intended only to prescribe the seniority among candidates available in the particular reserved category for a particular seat in a specific subject, if there are more than one candidate available .Mere instructions in the prospectus to prepare a common seniority list WPC.17724/2011 & conn. cases. 16 will not in any manner override the eligibility criteria prescribed for each category and for each subject in the PG course. Question of seniority and the question of eligibility has to be treated separately and shall not in any manner be permitted to override the premises under which seats are distributed among distinct categories and among distinct subjects and colleges. 11. The challenge in WPC.No.17799/11 will be sustainable only if it is held that in the process of admission the seats reserved to the category of teachers of private Medical colleges, have to be considered as a single unit. The petitioner is seeking appointment on the basis that since she is a teacher in the subject of 'Material Medica' she should have been given admission against the seat earmarked in the subject of Materia Medica for other private Medical colleges, in the circumstance that no candidate in the particular subject was available from that colleges. 12. In the counter affidavit filed on behalf of the Government it is contended that there are three private aided Homoeopathic Medical colleges in the State and those colleges WPC.17724/2011 & conn. cases. 17 were brought under the direct payment system during different years. Hence the 3 private Aided Homoeopathic colleges cannot be considered as a single unit for the purpose of admission to PG course is the contention. More over it is noticed that from among the quota reserved for the category of teachers, 5 seats are allotted to teachers of Government colleges and 5 seats are allotted to teachers of private medical colleges. It is evident from the prospectus of the previous year as well as from the current year that 5 seats earmarked for teachers of private medical colleges is allotted among 3 private medical colleges on a rotation basis. Hence it is evident that allotment of reserved category is specified to each private institutions on a year to year basis and it is a subject wise allotment in rotation to each of the medical colleges. Therefore a common pooling of the reserved quota for teachers of private Medical colleges was never intended and a claim for selection based on common non availability of candidate from any particular institution cannot be sustained. 13. Based on the findings arrived as above I am of the view WPC.17724/2011 & conn. cases. 18 that the challenges against the select list published and admissions effected are not sustainable. It is pertinent to note that the admissions with respect to the academic year 2011-12 was during July 2011 and almost 6 months in the academic course is over by this time. However in the interest of justice I may observe that the changes effected in the prospectus with respect to the academic year 2011-12 should be more clarified with respect to the exemption clause provided in 5.4.(b) in order to enable the candidates to have clear idea about eligibility and to avoid any confusion at the time of making application in the course for reserved category. The concerned authority in the Government will hopefully take care of the said aspect while publishing prospectus for the subsequent academic years. 14. Needless to say that the petitioners in these cases or any similarly situated persons will be at liberty to approach the concerned authority in the Government for a modification in the prospectus to the extent of making applicable the exemption clause provided in the case of teachers of Government Medical colleges equally in the case of teachers of private Medical WPC.17724/2011 & conn. cases. 19 colleges also. It is for the Government to consider such request if any received, before finalising the prospectus for the ensuing academic year. C.K.ABDUL REHIM,JUDGE pmn/