IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE KURIAN JOSEPH TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 W.A.No.974 of 2009 AGAINST THE JUDGEMENT IN W.P.(C).10852/2009, DATED 6/04/2009 .................... APPELLANT: PETITIONER:- ---------------------------------------- DR.N. RAJENDRAN, MEDICAL OFFICER, PUBLIC HEALTH CENTRE, MOODADI, KOZHIKODE. BY ADV. SRI.SAJEEV KUMAR K.GOPAL RESPONDENTS: RESPONDENTS:- -------------------------------------------------- 1. STATE OF KERALA, EPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 4. THE DISTRICT MEDICAL OFFICER OF HEALTH, THIRUVANANTHAPURAM. 5. DR. DEEPA S. NAIR, C.D.H, PULAYNARKOTTA, THIRUVANANTHAPURAM. R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.T.B.HOOD. R5 BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE , SRI.M.CHANDRA BOSE DR.ABRAHAM P.MEACHINKARA SRI.A.RAJASIMHAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON 16/06/2009 DELIVERED THE FOLLOWING:- S.R. Bannurmath, C.J. & Kurian Joseph, J. ------------------------------------------------ W.A.No.974 of 2009 ----------------------------------------------- Dated this, the 16th day of June, 2009 JUDGMENT S.R.Bannurmath, C.J. Aggrieved by the order dated 6th April, 2009 rejecting the writ petition, the unsuccessful writ petitioner has filed this appeal. 2. The brief facts of the case are as follows.- The petitioner-appellant is working presently as Medical Officer, Public Health Centre, Moodadi, Kozhikode, having entered service on 2.5.1996 as Assistant Surgeon. According to the petitioner, while he was working as District Medical Officer in the District Medical Office, Kannur, in the year 2000 he was sent on deputation to the World Health Organization (WHO) as Consultant under the “Revised National Tuberculosis Control Programme” (RNTCP) and nearly for eight years he worked as such. According to the petitioner, while he was working as a Consultant, he had worked in all regions, comprised in 14 districts, of the State for supervision, monitoring and surveillance of RNTCP. - 2 - 3. As per the case of the petitioner, when the 3rd respondent – Director of Medical Education, Thiruvananthapuram – invited applications from the doctors of Health Department for the admission to Post Graduate Course under Service quota, the petitioner filed an application with a request to include his name in the TB Quota for PG Medical admission. It is stated that when the select list was published, the name of the petitioner was not found in the list Exhibit P7 and as such he once again submitted a representation to consider his service in RNTCP, Kerala State. According to him, if the tuberculosis service rendered by the petitioner in RNTCP is taken into consideration, he would stand ranked No.1 as he has put more service than respondent No.5, who was ranked 1st in Exhibit P7. According to the petitioner, as the same was not considered he was constrained to approach this Court in the impugned writ petition. 4. The learned Single Judge, after considering in detail the arguments on both the sides, the scheme of RNTCP and the Prospectus issued for the Post Graduate Course, 2009, - 3 - rejected the writ petition holding that the petitioner was not entitled for being considered under the Tuberculosis Service Quota. Hence the Writ Appeal. 5. Taking us through the Prospectus and the RNTCP guidelines, it was vehemently contended on behalf of the petitioner-appellant that under the Kerala Medical Officers' Admission to Post Graduate Medical courses under Service Quota Act, 2008 (Act 29 of 2008), hereinafter referred to as “the Act”, one seat each in M.D., TB & RD and Diploma in TB & RD is reserved under Tuberculosis Service Quota and the requirement is minimum service of five years in the Department out of which either one year service in a Tuberculosis Hospital or two years service in a Tuberculosis unit. According to the learned counsel, as the petitioner-appellant had deputation as Consultant to the WHO, worked nearly for seven years and ten months, non-consideration of this period, which is more than equivalent to five years service in the Department, including one year service in a Tuberculosis Hospital or two years service in a Tuberculosis - 4 - unit, the learned Single Judge has erroneously held that this service cannot be held to be sufficient. 6. On perusal of the Act, it is to be noted that taking into consideration the fact that on account of inherent risk involved in treating TB patients, many of the doctors are unwilling or reluctant to work in TB Hospitals and TB units and to encourage the doctors, an incentive has been provided by way of reserving seats for the doctors working in the TB Hospitals and TB Units and as such the main requirement for being considered for eligibility under this quota is the actual service rendered for a minimum period of one year in either TB Hospital or two years service in TB Unit. Admittedly, the petitioner-appellant has not worked in any TB Hospital or in the TB Unit; but what is claimed is that, as he was working as Consultant in RNTCP under the WHO and practically he had to supervise the eradication of Tuberculosis in the entire State, his services as such should have been considered as having experience of more than two years in TB unit. - 5 - 7. As rightly noted by the learned Single Judge, in our view, under the Act, the minimum requirement for eligibility under the Tuberculosis Service Quota is, five years of service in the Department out of which either one year service in a TB Hospital or two years service in a TB unit and it is mandatory. This service in the Hospital or Unit means actual active participation as doctor, viz., consultation and treatment of T.B. Patients. Undisputedly, the petitioner-appellant has not worked in the TB Unit or in active participation in TB Hospital. However, on perusal of the programme and the technical and operational guidelines for Tuberculosis control in respect of Revised National Tuberculosis Control Programme, it is to be noted that he was only working as a Consultant and not as an active doctor in the TB Hospital or TB Unit. The deputation of the petitioner-appellant to the WHO cannot also be treated as rendering service in any TB Unit. Going by Clause VII(a)3 of the Prospectus, it is clear that the applicant under the Tuberculosis Service Quota should be regular staff under the Health Services Department/Medical - 6 - Education Service/Insurance Medical Service/Municipal Service and should have completed a minimum period of service under the Government of Kerala. In our view, the services rendered by the petitioner-appellant as Consultant on deputation cannot be considered as service under the Government of Kerala, especially as he is lacking active physical service as a doctor treating T.B. patients in either TB Hospital or TB Unit to the minimum period prescribed. In our view, unless a person has rendered actual physical service in the TB Hospital by treating the patient, he cannot be considered under the Tuberculosis Service Quota. As is evident from the Special Rules Agreement executed by the petitioner-appellant and the WHO and Revised National Tuberculosis Control Programme, his duty was only to provide technical support for training, supervision and implementation of RNTCP. He was required to visit the TB Unit only once, per quarter initially and once in six months thereafter. He was merely a Consultant and was not diagnosing or treating the Tuberculosis patients and as such we find that the petitioner-appellant had not - 7 - rendered minimum one year service in TB Hospital or two years service in TB Unit. Hence, we find that the findings and conclusion arrived at by the learned Single Judge are just and proper and need no interference. In the result, for the reasons stated above, the Writ Appeal is devoid of merits and the same is dismissed. Sd/- S.R. Bannurmath Chief Justice. Sd/- Kurian Joseph Judge. vku/- (True copy)