IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 2724 of 2009(Y) ------------------------------------ PETITIONER(S): ---------------------- 1. DR. AJITHA J.S., LECTURER IN RADIO DIAGNOSIS, MEDICAL COLLEGE HOSPITAL, TIRUVANANTHAPURAM. 2. DR. MOHAMMED NASEEM Y, LECTURER IN GENERAL MEDICINE, DEPARTMENT OF GENERAL MEDICINE, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. MR.B.JAYASANKAR MR.K.S.BHARATHAN MR.GRASHIOUS KURIAKOSE RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (S) DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MEDICAL EDUCATION, MEDICAL EDUCATION DIRECTORATE, THIRUVANANTHAPURAM. 3. DIRECTOR OF HEALTH SERVICES, HEALTH SERVICES DIRECTORATE, THIRUVANANTHAPURAM. 4. DIRECTOR OF INSURANCE MEDICAL SERVICES, INSURANCE MEDICAL SERVICES DIRECTORTE, THIRUVANANTHAPURAM. 5. COMMISSIONER FOR ENTRANCE EXAMINATIONS, THIRUVANANTHAPURAM. 6. DR. DAISY JOSEPH V., LECTURER, DEPARTMENT OF RADIO DIAGNOSIS, MEDICAL COLLEGE, KOTTAYAM. WP(C).No. 2724 of 2009(Y) 7. DR. KARUNAN KANNAN POYILIL, LECTURER, DEPARTMENT OF NEPHROLOGY, MEDICAL COLLEGE THIRUVANANTHAPURAM. * ADDL. R8 & R9 IMPLEADED ADDL. R8: DR. K. PADMAKSHAN, S/O.K.G. RAMAR, MEDICAL OFFICER, GOVT. DISPENSARY, CHALIL, THALASSERY, KANNUR DISTRICT. ADDL. R9: DR. K.T. MOHANAN, S/O.DR. K.P. KUNDARU, CIVIL SURGEON, MCH UNIT, CHERUPPA, KOZHIKODE. *IMPLEADED AS PER ORDER DATED 27/03/2009 IN I.A.4571/2009 IN WPC.2724/2009. R1 TO R5 BY GOVERNMENT PLEADER MR.HOOD R6 BY MR.K.P.DANDAPANI, SENIOR ADVOCATE ADV. MR.MILLU DANDAPANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2724 of 2009(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER NO.48638/83/07/H&FWD DATED 11/12/2007 ADDRESSED TO THE 2ND RESPONDENT. EXT.P2: COPY OF THE PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSES FOR THE YEAR 2009 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE APPLICATION DATED 08/01/2009 SUBMITTED BY THE 1ST PETITIONER FOR ADMISSION TO THE POSTGRADUATE DEGREE. EXT.P4: COPY OF THE APPLICATION DATED 08/01/2009 SUBMITTED BY THE 2ND PETITIONER FOR ADMISSION TO THE POSTGRADUATE DEGREE. EXT.P5: COPY OF THE LETTER DATED 27/11/2007 ADDRESSED TO THE 1ST RESPONDENT BY THE 2ND RESPONDENT. EXT.P6: COPY OF THE LETTER DATED 10/03/2008, ADDRESSED TO THE 1ST RESPONDENT BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE LETTER DATED 29/11/2008 ADDRESSED TO THE 1ST RESPONDENT BY THE 2ND RESPONDENT. EXT.P8: COPY OF THE LETTER DATED 04/12/2008 ADDRESSED TO THE 1ST RESPONDENT BY THE 2ND RESPONDENT. EXT.P9: COPY OF THE MINUTES OF THE MEETING OF THE P.G. PROSPECTUS COMMITTEE HELD ON 22/10/2008 AT 12 NOON IN THE CHAMBER OF THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (S) DEPARTMENT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).2724/2009 -------------------- Dated this the 7th day of April, 2009 JUDGMENT Petitioners, who are working as lecturers in the Medical Education Services in the Department of Medical Education Directorate, applied for admission to the Post Graduate Course, 2009, in M.D.Radio Diagnosis and M.D.General Medicine respectively. Sixth respondent is a Lecturer in the Department of Radio Diagnosis, Medical College, Kottayam. Seventh respondent is a Lecturer in the Department of Nephrology, Medical College, Thiruvananthapuram. They also applied for admission. 2. There is a 40% quota set apart for persons working in the Medical Education services, Health Services and the Insurance Medical Services taken together. There was earlier a dispute regarding whether the persons, who aspire for admission in the service quota, should nevertheless be subjected to the Common Entrance Test prescribed for admission W.P.(C).2724/2009 2 to the Post Graduate Medical course. Supreme Court had in the case of State of M.P. & Others v. Gopal D.Tirthani & Others (2003 (7) SCC 83), held that a person applying for admission under the service quota would also have to pass the Common Entrance Test held in that behalf regulating admission to the Post Graduate Degree Medical Courses. In these circumstances, apparently with a view to secure the services of experienced doctors in Government services, who have not secured a Post Graduate Degree so far, the Government brought about the Kerala Medical Officers Admission To Post Graduate Courses Under Service Quota Act, 2008. Preamble to the Act reads as follows:- It is expedient to provide for quota of seats among Medical Officers of the State of Kerala and to have a selection procedure for admission to various Postgraduate Courses in the Medical Colleges under the service quota considering their service under the Government. W.P.(C).2724/2009 3 3. Section 3 of the Act provides as follows:- Selection of Medical Officers for admission to Postgraduate Course Under the Service Quota - Notwithstanding anything contained in the Indian Medical Council Act, 1956 (Central Act 102 of 1956) or any rule or regulation issued thereunder or in any judgment, decree or order of any Court or authority, the selection of Medical Officers for admission to Postgraduate Course of study in the Sate under the service quota shall be made only under the provisions of this Act. 4. Section 4 empowers the Government to constitute a Postgraduate Course Selection Committee for the purpose of selection of Medical Officers under the service quota with the ex-officio members mentioned thereunder. W.P.(C).2724/2009 4 5. Section 5 deals with the procedure for selection and Section 8 empowers the Government in giving effect to the provisions of the Act as and when the occasion demands, within two years from the date of commencement of the Act. 6. Ext.P2 prospectus was issued by the Directorate of Medical Education with the approval of the Government regulating admissions to Medical Post Graduate Degree/Diploma Courses, 2009. Clause 7 of the prospectus is the subject matter of dispute and the same is extracted hereunder. Quota of seats for service candidates 40% of total State quota seats for PG degree and Diploma are set apart for service quota candidates in terms of the Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008. Seats as show in Annexure III and IV are set apart for service quota candidates W.P.(C).2724/2009 5 sponsored by each Department under the following four categories. 1. Medical Education Service Quota (MESQ) 2. Health Service Quota (HSQ) 3. Insurance Medical Service Quota (IMSQ) 4. Municipal Services Quota (MUQ) Eligibility for service quota - 1.The eligibility criteria laid down in Clause IV (a) and (b) are applicable for service candidates also. In Clause IV (c) a relaxation those service candidates who will not have the fixed minimum service (5 years) left after completion of the course can avail age relaxation upto five years and opt to study for the PG course under service quota seats without deputation benefits; provided that such candidates availing age relaxation will be considered only for 10% of the total seats set apart for service quota under each of the four categories, ie, the maximum number of seats which can be allotted to such service quota candidates availing age relaxation W.P.(C).2724/2009 6 beyond 47/48 years will be limited to 4 for MESQ, 2 for HSQ and Nil for IMSQ and MUQ in the case of PG Degree seats and the corresponding numbers will be 3 for HSQ, 1 for IMSQ and nil for MUQ in the case of PG Diploma seats. Only those service quota candidates who were born on or after 1.5.1957 will be eligible to be admitted for PG Degree seats and those born on or after 1.5.1956 will be eligible to be admitted for PG Diploma seats. The service quota candidates availing this relaxation will have to serve the Government on contract basis for the balance period (short of 5 years) after their regard at the time of admission. 7. It is the case of the petitioners that the provision for an age relaxation made in favour of those persons who apply under the service quota is arbitrary and amounts to sub classification of those persons who are already the beneficiaries of a quota and a reservation. Such classification, according to W.P.(C).2724/2009 7 the petitioners, which does not subserve any public interest in that regard, reflects an arbitrary exercise of the power by the Government and also goes against the principles laid down by the Supreme Court in AIIMS Students' Union v. AIIMS and Others (2002 (1) SCC 428) and E.V.Chinnaiah v. State of A.P. & Others (2005 (1) SCC 394). It is further contended that the prime justification for setting apart a service quota for PG Medical admissions is to enable the Government to secure the services of experienced doctors. Such experienced doctors who do not have a Postgraduate Degree find themselves stagnating in service. Many such doctors do not want to leave Government service, but the absence of a Postgraduate Degree puts a restriction on their aspirations. It is in public interest that such inservice candidates are given a chance to acquire a Postgraduate Degree while deeming them to be inservice and it is therefore, that a service quota is carved out for the benefit of such persons, in the W.P.(C).2724/2009 8 matter of Postgraduate admissions. 8. The maximum age limit prescribed for service quota candidates is 47 and this postulates that such persons completing PG Course within three years are still left with another five years of service before they attain the age of superannuation. It is contended that if age relaxation is granted, it could mean that persons upto the age of 52 are in a position to apply for PG admission and in many such cases, it is quite possible that there is hardly any service left in them after they complete the PG Course and acquire the Degree. Consequently the provision for an age relaxation is reflective of an arbitrary exercise of power by the Government and it is therefore, violative of Article 14 of the Constitution, it is contended. 9. Government has filed a counter affidavit supporting the clause. It is pointed out that the provision for an age relaxation is restricted to 10% W.P.(C).2724/2009 9 of the total seats set apart for service quota. However, it is made clear in the prospectus that those who opt for PG Service course under the service quota after availing the age relaxation, can do so only without deputation benefits. That is to say, unlike other service quota candidates, the persons who avail age relaxation will not be paid salary or other benefits during the time when they prosecute the course. 10. It is further contended that the Government has made a provision in Annexure-VII to the prospectus prescribing the form of bond to be executed by those persons, who acquire admission under service quota to serve the Government after they obtain the PG Degree, for such period as is decided by the Government even if they attain the age of superannuation. Clause (c) in the Note to Annexure-VII (Ext.P2) reads as follows:- Service quota candidates who have availed relaxation in upper age W.P.(C).2724/2009 10 limit and do not have minimum 5 years service after completion of the course have to serve the Government for the balance period on contract basis, if required by the Government on such terms and conditions as fixed by the Government. That is a service quota candidate who have availed age relaxation for getting admission, has only one service to superannuation, after completion of the postgraduate course, he/she shall serve for 4 more years after superannuation on contract basis, if the Government decides so. 11. Respondents 6 and 7, whose admissions have been challenged and whose admissions would probably be interfered with, if the reliefs sought for in the writ petition are granted, have not filed any counter affidavit. Pursuant to a direction issued by this Court, petitioners have taken out notice in the writ petition by paper publication. Additional respondents 8 and 9 have got themselves impleaded. They have also not filed any counter W.P.(C).2724/2009 11 affidavit. They have supported the stand taken by the Government. 12. I heard Mr.K.S.Bharathan, learned counsel for the petitioners, Mr.Hood, learned Government Pleader, Mr.Balagangadharan, learned counsel appearing for respondents 6 and 7, and Mr.Gracious Kuriakose, learned counsel appearing for respondents 8 and 9. 13. The contention raised by the learned counsel for the petitioners that a provision for a service quota must subserve the ultimate objective namely to secure the services of experienced doctors in the Government hospitals, merits acceptance. But it may not be correct to say that the provision for age relaxation as contained in clause 7(1)(a) of the prospectus is either in excess of the jurisdiction of the Government or otherwise illegal, merely because it provides for an age relaxation for service quota candidates. Firstly, the Act does not contain any W.P.(C).2724/2009 12 provision for maximum age for service quota candidates. It is left to the discretion of the Government. Where the Government has a power to prescribe a maximum age for service quota candidates and such power is not challenged by the petitioners also, the power to grant relaxation in the maximum age, cannot otherwise be disputed. 14. Learned counsel for the petitioners submits that even if the Government's power to grant relaxation in the maximum age is conceded for argument, such relaxation in age should have been afforded only if public interest is subserved by the exercise of power. As a proposition of law, the argument is impeccable, but can it be said the relaxation of age, granted in favour of the service quota candidates, does not serve public interest in this regard ? 15. Firstly, the age relaxation is made available only for 10% of the total seats. This restriction on the total number of seats available to those persons W.P.(C).2724/2009 13 who avail the provision for age relaxation, cannot be lost sight of. Secondly, as pointed out by the learned senior Government Pleader, Annexure-VII to Ext.P2 contains a provision which empowers the Government to compell the persons who avail of age relaxation to serve the Government. The Government has also provided for a premium, on availing age relaxation benefits, by making it clear that such persons will not get deputation benefits when they prosecute the course. It is further pointed out by the Government Pleader that the Government is still empowered to insist that those who secure admission for PG course under the service quota by availing of age relaxation should serve the Government for a minimum period of five years after they acquire the PG degree, if necessary by treating them as contract service employees. That is to say, if, after acquiring the PG degree, they have less than five years of service remaining, before they attain the age of superannuation, Government can insist that such persons shall continue to serve W.P.(C).2724/2009 14 the Government for the requisite number of years to make up the five years minimum required in that regard, on contract basis. 16. Learned counsel for the petitioners points out that though this clause may look good on paper, it is still left to the volition of the Government to require any person who avails the benefit of age relaxation, to continue to serve the Government after the age of superannuation. 17. I find force in the submission and I would have pursued this line of enquiry further. But Mr.Balagangadharan, learned counsel for respondents 6 and 7 and Mr.Gracious Kuriakose, learned counsel appearing for respondents 8 and 9, categorically undertake that respondents 6 and 7 and respondents 8 and 9 shall serve the Government, for such number of years as are required, to make up a total period of five years in Government service, after they acquire PG Degree and that they will W.P.(C).2724/2009 15 continue to serve the Government to make up the minimum period of five years, as contract employees after attaining the period of superannuation. Government shall therefore, ensure that such a clause is incorporated in the bond to be executed by respondents 6 and 7 and respondents 8 and 9, if not already executed or to be included as an addendum, if they have already executed a bond in this regard. I record the undertaking of the learned Government Pleader that there shall be no relaxation in that regard, in favour of respondents 6 and 7 and respondents 8 and 9. 18. I also record the submission of the learned Government Pleader that a similar undertaking will be obtained from other persons, who had obtained admission for PG Degree course for the year 2009, under the service quota after availing age relaxation benefit. Government shall ensure that persons who have obtained PG Medical admission under the service quota, after availing of age W.P.(C).2724/2009 16 relaxation, shall necessarily execute such an agreement, which shall reflect the undertaking given by the Government Pleader. It is made clear that such an undertaking should be obtained from those persons also and these directions will Obviously bind the other persons who have secured admission for the PG Medical Course after availing age relaxation benefit. Though they are not eo nominee parties to the writ petition, I take note of the fact that notice of the writ petition has been taken out by paper publication. Therefore, these directions will bind all those persons who could otherwise have responded to the publication taken out in the writ petition. 19. In such circumstances, I do not think that the provision for age relaxation granted in favour of service quota candidates, is liable to be treated as an arbitrary exercise of power. I do not find any grounds to interfere with the clause in the prospectus providing for such age relaxation. W.P.(C).2724/2009 17 20. But the Government shall look into the aspects highlighted by the petitioners and shall ensure that such age relaxation granted under the prospectus for the year 2009, is not continued interminably. A decision in this regard shall be taken before the prospectus for the next year is issued by the Director of Medical Education with the approval of the Government. Subject to the above, writ petition is disposed of. V.GIRI, Judge mrcs