IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 10983 of 2009(P) ---------------------------------------- PETITIONER(S): ------------------------- DR.SUNIL DANIEL, AGED 38 YEARS, S/O.N.I.DANIEL, NELLIPALLIL HOUSE, PALLURUTHY, KOCHI-6. BY ADVS. MR.P.CHANDRASEKHAR MR.SURAJ KRISHNA SMT.UMA MR.JAYAKRISHNAN SMT.P.CINU RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. ADDL. R3 IS IMPLEADED 3. DR.S.J.RAJMOHAN, ASSISTANT INSURANCE MEDICAL OFFICER, E.S.I., DISPENSARY, CHATTANNUR, KOTTAYAM DISTRICT. ADDL. R3 IS IMPLEADED AS PER ORDER DT. 21.4.09 IN IA. NO.5271/2009. BY ADV.MR.D.KISHORE FOR ADDL.R3 BY GOVERNMENT PLEADER MR.M.A.ASIF FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C0 NO.10983/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSES 2009. P2:- COPY OF THE PROVISIONAL RANK LIST CONTAINING NAMES OF LECTURER QUOTA CANDIDATES SELECTED FOR MEDICAL PG COURSE ADMISSION 2009. P3:- COPY OF THE PETITION DT. 25.3.09 OF THE PETITIONER TO THE IST RESPONDENT. P4:- COPY OF THE JUDGMENT DT. 30.3.09 IN WPC. NO.10208/09 (U) OF THIS HONOURABLE COURT. P5:- COPY OF THE GO(RT) NO.969/09/H&FWD DT. 3.4.09. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE PROCEEDING NO.E6-29580/08(1) DIMS DT. 26.2.09 OF DIRECTOR OF IMS. R3(b):- COPY OF THE PROCEEDINGS NO.B2/4500/09/DMC DT. 6.4.09 OF DIRECTOR OF MEDICAL EDUCATION. R3(c):- COPY OF THE SELECT LIST OF LECTURER QUOTA CANDIDATES DOWN LOADED FROM WEBSITE. ANNEXURE I:- COPY PROCEEDINGS NO.E6-29580/2008(1) DIMS DT. 26.2.09 OF DIRECTOR OF IMS. ANNEXURE II:- COPY OF THE PROCEEDINGS NO.B2/4500/09/DMC DT. 6.4.09 OF DIRECTOR OF MEDICAL EDUCATION. ANNEXURE III:- COPY OF THE SELECT LIST OF LECTURER QUOTA CANDIDATES DOWN LOADED FROM WEBSITE. TRUE COPY P.S. TO JUDGE TSS V.GIRI, J. ---------------------------------------- W.P.(C).No.10983 of 2009 ---------------------------------------- Dated this the 24th day of June, 2009. JUDGMENT The petitioner is a Lecturer in Paediatrics in T.D.Medical College, Alappuzha. He applied for the Medical Post Graduate Diploma course, 2009. Ext.P1 is the prospectus issued in this regard. 40% of the seats are reserved for service quota as per Clause VII of Ext.P1 prospectus. The service quota candidates sponsored by each department would come under four categories namely: “(a)Medical Education Service Quota(MESQ) (b)Health Service Quota (HSQ) (c)Insurance Medical Service Quota (IMSQ) (d) Municipal Services Quota (MUQ)” 2. Eligibility for service quota is mentioned under Clause VII(a). It is further made clear as per Clause VII(3) that the applicants under the service quota should be regular staff under HSD/MES//Municipal service. They should have at W.P.(C).No.10983 of 2009 :: 2 :: least two years service as Lecturer in the Medical Education Service or 5 years in the case of other state services. The relevant clause is VII(3) around which the controversy involved in this writ petition, has essentially focussed: “The applicants under Service Quota should be regular staff under HSD/MES/Municipal Service 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 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 W.P.(C).No.10983 of 2009 :: 3 :: 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. The allotment of seats in the different faculties for the different courses in the service quota are contained in Annexure 3 of the prospectus. It is seen that 10 seats in total are allotted for MD (Paediatrics), 5 of them allotted to the general merit, 1 for a SC candidate, 2 for MES and 2 for HSQ. Clause 11(b) of the prospectus deals with the allotment of seats under the service quota. 4. Allocation of seats for various categories of service candidates is to be done by rotation in the order shown therein. Under Clause 11(b)(iii), it is stipulated that when there are no eligible candidate to opt for MESQ/HSQ/IMSQ/MUQ, in any speciality the resultant vacancy will be filled up by eligible candidates in the HSQ/IMSQ/MUQ in the order shown therein. W.P.(C).No.10983 of 2009 :: 4 :: 5. The petitioner, as stated above, is a Lecturer in the Medical Education service. Admittedly, he did not complete 2 years of service, on the date of the application. He, therefore, applied for relaxation, which according to him, is permissible under Clause VII(3) of the prospectus. Reference is also made in this regard to the Rules framed under the Kerala Medical Officers' Admission to PG Courses in Service Quota Act, 2008, which essentially provides for a separate service quota for PG courses and exemption for candidates applying under the service quota from participating in the common entrance examination. Rule 4 of the Rules deals with the procedure for selection of candidates from service quota. Rule 4(v) reads as follows: “(v) In case sufficient number of service candidates having 2 years and 5 years of minimum service can be relaxed by the Government before the date of allotment.” W.P.(C).No.10983 of 2009 :: 5 :: 6. It can be seen that Clause VII(3) of the prospectus has been practically reproduced in Rule 4(v) of the Rules. 7. As stated above, since the petitioner did not complete 2 years service on the date of the application, he moved the Government for relaxation of the qualification and consequent eligibility to apply for the course. When the Government did not take any action, he had approached this court with a writ petition, which was disposed of under Ext.P4 judgment. The operative portion of the judgment reads as follows: “Therefore, the writ petition is disposed of directing that the 1st respondent shall consider Ext.P3 made by the petitioner for relaxation of the condition referred to above. Orders shall be passed as expeditiously as possible, at any rate, on production of a copy of this judgment, along with a copy of this writ petition.” 8. Pursuant to Ext.P4, the Government passed Ext.P5 order declining to relax the W.P.(C).No.10983 of 2009 :: 6 :: qualification in relation to the petitioner. According to the Government, there are sufficient qualified candidates in the Health Services Department and Insurance Medical Service and therefore, it would not be possible to relax the qualification in favour of the petitioner. This has been challenged in the writ petition. 9. I heard Mr.Chandrasekhar learned counsel for the petitioner, learned Government Pleader Mr.Asif and Mr.D.Kishore, learned counsel for the 3rd respondent. 10. Mr.Chandrasekhar contends that Ext.P5 order is bad on two grounds. Firstly, Ext.P5 will show that the decision not to relax the qualification in favour of the petitioner was taken by the PG selection committee and not by the Government and this is in contravention of the direction issued by this court in Ext.P4 and is also inconsistent with the power of relaxation available under Clause VII(3) of W.P.(C).No.10983 of 2009 :: 7 :: the prospectus and Rule 4(v) of the Rules. It is then contended by him that the clause empowering the Government to relax the period of minimum service, qua any candidate has not been correctly understood by the Government. According to him, the requirement of minimum service, can be regularised in favour of any candidate provided, there are no other eligible persons in the category in question. According to him, the word 'category' as occurring in the prospectus and the Rule should, therefore, be construed as referring to the category under which the concerned person, who seeks a relaxation has applied. In other words, since the petitioner has applied under the Medical Education Service, the Government should have only verified whether there are other eligible candidates who had applied for MD(Paediatrics) in Medical Education Service and if there are no such candidates who are eligible in Medical Education Service, then the Government W.P.(C).No.10983 of 2009 :: 8 :: should have exercised its power under Rule 5 on that basis. The Government should not have proceeded to verify whether there are eligible candidates in the other 3 categories and then take a decision as to whether the minimum service required should be relaxed in favour of the petitioner. 11. This stand taken by the petitioner is refuted by the Government Pleader as also by Mr.Kishore. 12. I am unable to accept the submission made by the learned counsel for the petitioner that the word 'category' as occurring in Rule 4(v) and Clause VII(3) of the prospectus should be construed in such a manner that the availability of other eligible candidates should be ascertained by the Government only with reference to the category under which the applicant, who seeks relaxation, has applied. In my opinion, this would render otiose the provision regarding relaxation as occurring in the W.P.(C).No.10983 of 2009 :: 9 :: Rules and in the prospectus. Secondly, as is contended by the respondents, different categories in different streams have been enumerated in the prospectus. Medical Education Service, Health Service, Municipal Service and Insurance Medical Service are obviously the four categories, which come under the service quota. A reasonable interpretation of the relevant rule and the relevant clause in the prospectus would suggest that since the applicant requires a relaxation of a stipulation which is made applicable to all applicants, the seats otherwise falling vacant should be made available to the eligible candidates in the other categories as well. This seems to be the purpose behind the power of relaxation, which can be exercised only if there are no eligible candidates in any category, comprehended by Service quota. 13. Mr.Chandrasekhar is right when he submits that the power to effect any relaxation can W.P.(C).No.10983 of 2009 :: 10 :: be exercised only by the Government and in the present case, the decision seems to have been taken by the PG selection committee. But it really does not bring about improvement to the petitioner's case. After all, the petitioner does not have a case that there are no eligible candidates in the other categories in the service quota and if that be so, even the Government would not be in a position to relax the qualification in favour of the petitioner. Moreover, the Chairman of the PG selection committee is the Secretary to the Government itself and therefore, the decision as reflected in Ext.P5 has actually been a decision of the Government. For all these reasons, I find no merit in this writ petition. Accordingly, the same is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy//