IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 14981 of 2010(W) ----------------------------------------- PETITIONER(S): -------------------------- DR. BINDU VARGHESE, THAYYIL HOUSE, THOLICODU.P.O, PUNALUR, KOLLAM. BY ADVS. SRI.ELVIN PETER P.J., SMT. POOJA SURENDRAN. 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, THIRUVANANTHAPURAM. *ADDL.R4 TO R6 IMPLEADED: R4. DR. SAJI SUBRAMONIAM, S/O.M.V. SUBRAMANIAM, 'KUSUMA NIVAS', KOTTAPPADY P.O., TRICHUR - 680 505. R5. DR. RAJANY ANTONY, KUNNATHKATTIL HOUSE, ENGAKADU P.O., WADAKKANCHEERY, TRICHUR. Kss ..2/- ..2.... WPC.NO.14981/2010 W R6. DR. SACHIN JOSEPH, THACHAPARAMBIL, THAIKKATTUSSERY, CHERTHALA. (*ADDL.R4 TO R6 ARE IMPLEADED AS PER ORDER DTD. 24/05/2010 IN I.A.NO.6304/2010) **ADDL.R7 IMPLEADED: R7. DR. RAJITHA L., W/O.SANJAYAN KUMAR, MAHIMA, THAMPURAN NAGAR, ENGINEERING COLLEGE P.O., THIRUVANANTHAPURAM. (**ADDL.R7 IS IMPLEADED AS PER ORDER DTD. 12/07/2010 IN IN I.A.NO.9364/2010) R1 TO R3 BY GOVERNMENT PLEADER SRI. T.B.HOOD ADDL.R4 TO R6 BY ADVS. SRI.K.I.MAYANKUTTY MATHER, SRI.K.S.SAJEEV KUMAR, SRI.MAHESH V.MENON. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/09/2010 ALONG WITH WPC.NO.15378 OF 2010 AND CONNECTED CASES, THE COURT ON 15/09/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.14981/2010 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER G.O. DTD. 29/05/2007 ISSUED BY THE GOVERNMENT. P2: COPY OF THE PROSPECTUS FOR MEDICAL POST GRADUATE DEGREE/ DIPLOMA COURSES - 2003 ISSUED BY THE GOVT. P3: COPY OF THE PROSPECTUS FOR THE POST GRADUATE DEGREE/ DIPLOMA COURSES 2004 ISSUED BY THE GOVERNMENT (RELEVANT PAGES). P4: COPY OF THE ORDER G.O. DTD. 21/12/2006 ISSUED BY THE GOVERNMENT. P5: COPY OF THE ORDER G.O. DTD. 21/12/2006 ISSUED BY THE GOVERNMENT. P6: COPY OF THE PROSPECTUS FOR ADMISSION TO MEDICAL P.G.DEGREE/ DIPLOMA COURSES 2009 ISSUED BY THE GOVERNMENT. P7: COPY OF THE PROSPECTUS FOR ADMISSION TO POST GRADUATE SUPER SPECIALITY COURSES - 2009 ISSUED BY THE GOVERNMENT. P8: COPY OF THE INTERIM ORDER DTD. 22/06/2009 IN WP(C) NO.17250/2009 OF THIS HON'BLE COURT. P9: COPY OF THE JUDGMENT DTD. 25/06/2009 IN WP(C) NO.17250/2009 OF THIS HON'BLE COURT. P10: COPY OF THE NOTIFICATION DTD. 6/05/2010 ISSUED BY THE 3RD RESPONDENT. P11: COPY OF THE PROSPECTUS FOR ADMISSION TO POST GRADUATE SUPER SPECIALITY COURSES 2010 ISSUED BY THE GOVERNMENT. P12: COPY OF THE RELEVANT EXTRACT OF THE REGULATIONS ISSUED BY THE MEDICAL COUNCIL OF INDIA. P13: COPY OF THE RESULT OF THE ENTRANCE EXAMINATION FOR D.M. NEUROLOGY COURSE. Kss ..2/- ...2.... WPC.NO.14981/2010 W P14: COPY OF THE RANK PUBLISHED BY NATIONAL INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES, BANGALORE FOR D.M.NEUROLOGY COURSE. RESPONDENT'S EXHIBITS: R1(A): COPY OF G.O.(RT) NO.1765/09/H&FWD DTD. 24/06/09. R4(A): COPY OF THE G.O.(MS) NO.13/2010/H&FWD DTD. 14/01/2010 ISSUED BY THE 1ST RESPONDENT. R4(B): COPY OF THE I.A.NO.10405/2010 IN WP.14908/2010 FILED BY THE 1ST RESPONDENT BEFORE THIS HONOURABLE COURT. R4(C): COPY OF THE G.O.(RT) NO.2972/2010/H&FWD DTD. 31/07/2010 ISSUED BY THE 1ST RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss S.SIRI JAGAN, J. ============================= W.P.(C).Nos. 14981, 15378, 15481, 15598, 15882, 16039, 16101, 16655, 16743, 17201 & 24829 of 2010 =============================== Dated this the 15th day of September, 2010 J U D G M E N T In the Kerala State, the imbroglio in the field of admissions to medical courses continues unabatedly every year, without any solution in sight in the near future. Sadly, it appears as if for some reason or other, every step taken by the government in the field of admissions to medical courses only adds to the confusion every time. In these writ petitions, the scene shifts to the field of admissions to super-speciality post-graduate medical courses in Kerala, for this year. Since the issues arising in all these writ petitions are one and the same, these writ petitions have been heard together and are being disposed of by this common judgment. For convenience in preparing judgment, unless otherwise specifically indicated otherwise, the rank of parties and exhibits referred to herein below shall be as obtaining in W.P. (C) No. 16039/10. 2. The petitioners herein are aspirants for admissions to the super-speciality post- graduate medical courses in various disciplines in the merit stream, who are aggrieved by certain eligibility criteria fixed by the government in the prospectus for admissions to those w.p.c.14981/10 etc. 2 courses, except the petitioner in W.P. (C) No. 24829/10. Ext. P1 is the prospectus issued by the Government of Kerala for such admissions, this year. The challenge originally was against three sub clauses of clause no. III(a) thereof, under the main heading “Eligibility for admission” with the sub heading ‘Nativity’. The same reads thus: “III. Eligibility for admission: (a)Nativity : Applicants should have satisfied the following conditions. (i) They should be Indian Citizens. (ii) Has passed the PG Degree (MD/MS)/Dip.N.B from any of the Medical Colleges recognised by Medical Council of India. (iii) Has done at least 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 condition 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.” In the writ petitions counter affidavits were filed by the Government, in paragraph 5 of which, they have submitted as follows: '5. Regarding Clause III(a) (v), which provides that preference shall be given to candidates who had done MBBS or MD/MS from the Medical Colleges in Kerala for preparation of rank list, it is submitted that Government are willing to modify the said Clause in the following manner. “Preference shall be given to Indian Citizens of Kerala origin/children of All India Service (AIS) Officers (non Keralites) allotted to Kerala Cadre/those who had done MBBS/MD/MS from the w.p.c.14981/10 etc. 3 Medical Colleges in Kerala for preparation of rank lists. 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 Examinations.”' 3. These cases were originally taken up for hearing on 15-7- 2010. Counsel for the petitioners were heard on that day and arguments spilled over to the next day. When hearing resumed on 16- 7-2009, the learned Government Pleader sought for time. Therefore I passed the following interim order on 16-7-2010 and adjourned the hearing of the cases, as desired by the Government Pleader: 'After hearing these writ petitions for sometime the learned Government Pleader today submitted as follows: As per the MCI Regulations, the first allotment has to be completed by 26.07.2010. The admissions have to be completed only by 30.09.2010. In the meanwhile, if allotments are done provisionally subject to the results of the writ petitions many of the petitioners may get admission to the specialties of their choice. Further if that eventuality occurs the contention that there is wholesale reservation may to some extent may not be forceful. Further according to him the arguments in these writ petitions may not be over by 26.07.2010. Therefore he seeks permission to proceed with the 1st allotment on 26.07.2010. He further undertakes that the students who are allotted seats in the 1st allotment would be specifically informed that their allotments are provisional and subject to the result of these writ petitions and that if any of them wish to oppose the writ petitions they shall get themselves impleaded in these writ petitions so as to avoid a possible contention that they have not been made parties to the writ petition. He therefore submits that these writ petitions may be heard after 26.07.2010 subject to the above so that the same can be finalised before 30.09.2010. I have heard the petitioners in the writ petitions also on this suggestion. After hearing both sides, I am of opinion that, since for delivering a judgment in these cases it would take quite sometime and at any rate it cannot be done before 26.07.2010 the said course of action may not be prejudicial to the parties to these writ petitions. Accordingly the following interim orders are passed in modification of the earlier interim orders: The respondents can conduct the first allotment on 26.07.2010 in terms of the provisions of the prospectus, which shall be expressly made subject to the result of these writ petitions with further w.p.c.14981/10 etc. 4 specification that those persons who want to oppose the writ petitions on any ground available to them should get themselves impleaded in these writ petitions. In paragraph 5 of the counter affidavit filed by the State it is specifically stated thus: 5. Regarding Clause III (a) (v), which provides that preference shall be given to candidates who had done MBBS or MD/MS from the Medical Colleges in Kerala for preparation of rank list, it is submitted that Government are willing to modify the said Clause in the following manner. “Preference shall be given to Indian Citizens of Kerala origin/children of All India Service (AIS) Officers (non Keralites) allotted to Kerala Cadre/those who had done MBBS/MD/MS from the Medical Colleges in Kerala for preparation of rank lists. 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 Examinations.” Therefore the provisional allotment, shall be in accordance with clause III (a) (v) with the modification as agreed to in the above paragraph in the counter affidavit. No further allotment shall be made without obtaining orders from this court. Only allotment shall be made and no admissions. Post for further hearing on 28.07.2010.' On the next posting date, viz. 28-7-2010, the Government Pleader submitted that they propose to amend the prospectus, which according to them, may satisfy the petitioners and sought orders in that regard. Hence on 28-7-2010, I passed the following interim order: “The pendency of these writ petitions would not stand in the way of the Government taking any steps acceptable to the petitioners for redressing their grievances. If the Government are satisfied that the amendment proposed in I.A. No.10405/2010 in W.P.(C) No.14908/2010 are valid in law it is open to them to implement the same also subject to the contentions of the petitioners. I make it clear that I have not considered the validity of the proposal on merits and it would be open to them to challenge the same it does not work out to their advantage. Post on next Friday. (6/08/2010)” Thereafter, Ext.P8 Government order was passed amending Clauses w.p.c.14981/10 etc. 5 III (a) (iii) and Clause V of the prospectus, the operative portion of which reads thus: 'Clause III (a) (iii) “The candidates who have done one year compulsory Rural Service/Senior Residency/Government Service in any of the Government Medical Colleges/Government Hospitals in Kerala will get preference for admission to the seats set apart for them in this regard (10% of the total seats available under General merit) Clause V. Distribution of Seats. Distribution of available seats to different categories is as shown below: Sl. No. Name of course Total Seats General merit MES Quota Health Service quota Seats set apart for the candidates one year Government service Balance seats under General merit 1 M.Ch. Paediatric surgery 10 8 1 1 1 7 2 M.Ch. Plastic Surgery 5 3 1 1 0 3 3 M.Ch. Genito Urinary Surgery 13 11 1 1 1 10 4 M.Ch.Thorasic Surgery 6 5 1 0 0 5 5 M.Ch. Neurosurgery 9 6 2 1 1 5 6 Mch.Gastro entrology Surgery 1 0 1 0 0 0 7 D.M. Cardiology 18 14 2 2 1 13 8 DM Gastroentrology 10 9 1 0 1 8 9 DM Neurology 7 5 1 1 1 6 10 DM Nephrology 6 5 1 0 0 5 Total 85 66 12 7 6 60 The Commissioner for Entrance Examinations shall publish the Rank List of PG Medical Super Speciality Admission 2010 on the basis of the Prospectus as modified above immediately. The Director of Medical Education shall conduct 1st Round of Allotment as directed by the Hon'ble High Court.” w.p.c.14981/10 etc. 6 Still dissatisfied, some of the petitioners in the writ petitions other than W.P. (C)No.24829/10 amended the writ petition challenging the amendment made by Ext. P8 order also. The Petitioner in W.P. (C) No. 24829/10 is also challenging Ext.P8 order, but on the ground that the Government cannot change the conditions in the prospectus after the commencement of the admission process, and seeking to sustain Clauses III (a) (iii) and Clause V of the prospectus as it originally stood. 4. According to the petitioners, who challenge the clauses in the prospectus and Ext.P8, admissions to post-graduate super- speciality courses are governed by the norms laid down by the Medical Council of India and the impugned clauses providing for admission exclusively to candidates who have done at least one year compulsory rural service/Senior residency/Government service in any of the Government Medical Colleges/Government Hospitals in Kerala, in the first instance, in the absence of whom only others would be considered for admission, is contrary to the norms prescribed for admission by the Medical Council of India and therefore arbitrary, illegal, unconstitutional and violative of the fundamental rights of the petitioners guaranteed under the Constitution of India. They would contend that the said clauses in effect constitute reservation, in favour of persons having government service and senior residency, which w.p.c.14981/10 etc. 7 have been held to be unsustainable by various decisions of the Supreme Court of India. They would also point out that those who have served the government have dual reservation insofar as 40% of the seats are already reserved for those in Medical College service and Health service under the Government as per a statute enacted for the purpose (the validity of which legislation is also stated to be pending consideration in a batch of writ petitions before the Division Bench of this Court on the ground that the State has no legislative competence to enact that legislation), which would amount to dual reservation. They would also contend that reservation based on the state or institution in which candidates have studied also has been found to be unsustainable by the Supreme Court of India in the matter of admission to super-speciality postgraduate medical courses. Although some other clauses have also been challenged those grounds were not argued at the time of hearing. 5. A counter affidavit has been filed by the state in W.P. (C) 16101/10, which has been adopted as the counter affidavits in other writ petitions also, by leave of the court. The contention of the state therein is that the impugned clauses do not provide for any reservation, but only preference, which is not prohibited by the Medical Council or the Supreme Court. According to them the same is only an eligibility criterion, which cannot be equated with communal or other w.p.c.14981/10 etc. 8 reservations, which only are prohibited. The Government, which establishes, administers and maintains medical colleges spending crores of rupees is entitled to prescribe eligibility conditions for admissions to courses in medical colleges, which cannot be termed to be arbitrary or illegal, which only has been done by the impugned clauses, is their contention. 6. The Petitioner in W.P. (C) No. 24829/10 supports the prospectus as it originally stood before amendment by Ext. P8 and challenges Ext. P8 on the ground that the Government cannot modify the prospectus after the selection process has begun. 7. I have considered the contentions of all parties on the basis of the arguments advanced at the time of hearing. 8. The primacy of the Medical Council of India, in the matter of laying down standards of medical education in the country, by virtue of powers conferred on them under the Indian Medical Council Act, 1956, has been recognised by the Supreme Court of India in the decision of Preeti Srivatava (Dr.) V State of M.P., (1997) 7 SCC 120, in which the Supreme Court has held that “the scheme of Indian Medical Council Act, 1956 does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council” and that “the universities must necessarily be guided by the standards prescribed under w.p.c.14981/10 etc. 9 Section 20(1) if their degrees or diplomas are to be recognised under the Medical Council of India Act”. The Medical Council of India has framed the Postgraduate Medical Education Regulations, 2000, which although is in respect of super-speciality post graduate courses (D.M. and M.Ch.) also, (as is clear from clause 10 (2) which prescribes the period of training for D.M. and M.Ch. Courses) prescribe common standards for all postgraduate courses, which include super- speciality postgraduate courses. The same prescribes the criteria for selection of postgraduate students, generally, in clause 9 thereof, as it stood before its amendment in 2009, thus: “9. SELECTION OF POSTGRADUATE STUDENTS. 1. Students for postgraduate medical courses shall be selected strictly on the basis of their academic merit. 2. For determining the academic merit, the university/institution may adopt any one of the following procedures both for degree and diploma courses:- (a) On the basis of merit as determined by the competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same state; or (b) On the basis of merit as determined by a centralised competitive test held at the national level; or (c) On the basis of the individual cumulative performance at the first, second and their MBBS examination, if such examination have been passed for the same university; or (d) Combination of (i) and (iii): Provided that wherever entrance test for postgraduate admission is held by the State Government or a university or any other authorised examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical courses shall be fifty percent for general category candidates and 40 percent for the candidate belonging to Scheduled Castes, Scheduled Tribes and Other backward Classes. w.p.c.14981/10 etc. 10 Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent by the management of the institution on the basis of the merit. By amendment notification No. MCI.18(1)/2009-Med. /22653 dated 21-7-2009, that clause was substituted thus: “1) (a) Students for postgraduate medical courses shall be selected strictly on the basis of their academic merit. (b) 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas. 2) For determining the ‘Academic Merit’, the University/Institution may adopt the following methodology:- (a) On the basis of merit as determined by the ‘Competitive Test’ conducted by the State Government or by the competent authority appointed by the State Government or by the university/group of universities in the same state; or (b) On the basis of merit as determined by a centralised competitive test held at the national level; or (c) On the basis of the individual cumulative performance at the first, second and third MBBS examination, provided admissions are University wise; or (d) Combination of (a) and (c): Provided that wherever entrance test for postgraduate admission is held by the State Government or a university or any other authorised examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical courses shall be fifty percent for general category candidates and 40 percent for the candidate belonging to Scheduled Castes, Scheduled Tribes and Other backward Classes. Provided further that in Non-Governmental institutions fifty percent of the total seats shall be filled by the Competent Authority notified by the State Government and the remaining fifty percent by the management(s) of the institution on the basis of the Inter-se Academic Merit.” Since the Indian Medical Council Act and the Regulations framed thereunder in respect of postgraduate medical courses find their w.p.c.14981/10 etc. 11 source of legislative power under Entry 66 of Schedule VII of the Constitution of India, relating to determination of Standards in institutions of higher education, the power of the State Government to legislate in respect of that subject, in exercise of powers under Entry 25 of List II, is clearly excluded, as held by various decisions of the Supreme Court of India (See for example, State of T.N. and another V Adhiyaman Educational and Research Institute and others, (1995) 4 SCC 104 and Dr. Preeti Srivastava’s case supra), except, perhaps, for prescribing better or higher standards of education. Therefore, since the Medical Council has already laid down the method of selection of candidates for post graduate courses, which mandates that selection of students shall be strictly on the basis of merit, which does not give any leeway for the state to exercise their discretion in the matter of prescribing criteria for selection other than on the basis of merit, if the criteria prescribed in Ext. P1 or Ext. P8 cannot be said to be either merit based or prescribing higher standards, those would be beyond the legislative powers of the State Government. 9. The question of reservations in admissions to super- speciality postgraduate courses came up for consideration of the Supreme Court of India as early as in 1980 in the decision of Jagdish Saran V Union of India, (1980) 2 SCC 768 and again in Pardeep Jain v Union of India, (1984) 3 SCC 654. In Pradeep Jain’s case, w.p.c.14981/10 etc. 12 quoting the eloquent words of Justice Krishna Iyer J., in his inimitable style, from Jagdish Saran’s case, the Supreme Court held thus in paragraph 22: '22. So much for admission to the MBBS course, but different considerations must prevail when we come to consider the question of reservation based on residence requirement within the State or on institutional preference for admission to the post-graduate courses, such as, MD, MS and the like. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. It was rightly pointed out by Krishna Iyer, J., in Jagdish Saran case5, and we wholly endorse what he has said: “The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in-the-making is a national loss, the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. (SCC pp. 778-79, para 23) * * * If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation’s human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but