State can provide quota PG- Super Speciality Medical Course- Kerala HC

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY THE 07TH DAY OF OCTOBER 2020 15TH ASWINA 1942 WA.No.1302 OF 2020 AGAINST THE ORDER IN WP(C) 20256 2020(F) OF HIGH COURT OF APPELLANT PETITIONER IN WPC AGED 51 YEARS W O. GIRISH T POORNA HOUSE NO. 108 TB NAGAR ANGAMALY KERALA 683 572 CURRENTLY WORKING AS CONSULTANT IN PAEDIATRICS GENERAL HOSPITAL ERNAKULAM HOSPITAL RD MARINE DRIVE ERNAKULAM KERALA 682 011 SRI.RAJAN G. GEORGE RESPONDENTS RESPONDENTS IN THE WPC UNION OF INDIA REPRESENTED BY ITS DIRECTOR GENERAL OF HEALTH SERVICES THE DIRECTORATE GENERAL OF HEALTH SERVICESROOM NO.446 A NIRMAN BHAWAN RAJPATH AREA CENTRAL SECRETARIAT NEW DELHI DELHI 110 001 W.A.NO.13020 :2: NATIONAL BOARD OF EXAMINATIONS REPRESENTED BY ITS PRESIDENT MEDICAL ENCALVE ANSARI NAGAR RING ROAD NEW DELHI 110 029 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT TRIVANDRUM 695 001 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION MEDICAL COLLEGE P.O THIRUVANANTHAPURAM PIN 695 011 KERALA COMMISSIONER OF ENTRANCE EXAMINATIONS HOUSING BOARD BUILDINGS SANTHI NAGAR TRIVANDRUM 695 001 NATIONAL MEDICAL COMMISSION OF INDIA REPRESENTED BY ITS SECRETARY POCKET 14 SECTOR 8 DWARAKA PHASE 1 NEW DELHI 110 077Nos.20135 20256 and 205720 dated 5.10.2020 declining to restrain Union of India represented by its Director General of Health Services New Delhi from proceeding with the counselling admission to 40% seats in in service quota and against the directions of the writ court to respondent No.1 to consider Ext.P10 representation direction to the State of Kerala represented by its Secretary to the Government Health and Family Welfare Department Trivandrumto consider Ext.P11 representation and the direction to the National Medical Council of Indiato consider Ext.P12 representation instant writ appeal is filed 2. It is submitted that respondent No.6 herein should be National Medical Commission of India represented by its Secretary Pocket 14 Sector 8 Dwarka Phase 1 New Delhi 110 077. But by inadvertence it W.A.NO.13020 :4: has been shown as National Medical Council of India. Registry is directed to carry out necessary amendments wherever required 3. We have heard Mr. George Varghese Perumpallikuttiyil learned counsel for the appellants Mr. Jaishankar V. Nair learned Central Government Counsel and Mr. Aravindakumar Babu learned Senior Government Pleader for the State of Kerala and Mr. Titus Mani Vettom learned standing counsel for the respondent No.6. 4. Inviting our attention to the decision in Tamil Nadu Medical Officers Association and Others v. Union of India and Others reported in 2020 SCC Online SC 699 which answered a reference in particular to the conclusions of the Hon ble Supreme Court in the above said decision Mr. George Varghese Perumpallikuttiyil learned counsel for the appellants submitted that the State Government have legislative competence and authority to make reservations and or provisions for admissions to Postgraduate Super Speciality courses 5. Learned counsel for the appellants further submitted that insofar as State of Kerala is concerned such reservation in admission for Postgraduate Super Speciality Courses was already provided under the Kerala Medical Officers Postgraduate and Service Quota Act 2008 and the W.A.NO.13020 :5: rules framed thereunder. 6. He also submitted that the Act and the rules framed thereunder provide for guidelines prescribing eligibility criteria for the candidates opting reservation under the in service quota. 7. He further submitted that nothing in the prospectus prohibits the State Government from granting admission to candidate falling under the in service quota towards Postgraduate Super Speciality Courses 8. Placing reliance on the decision of the Hon ble Supreme Court in Dr. Preeti Srivastava v. State of Madhya Pradesh and Others reported in 7 SCC 120 Mr. Jaishankar V. Nair learned Central Government Counsel submitted that Tamil Nadu Medical Officers Association does not deal with reservation in Super Speciality Courses. It is also his contention that the counselling is scheduled tomorrow. The State Government have not submitted the list of eligible candidates for admission either in the general category or in service quota. Admissions as per the time schedule prescribed by the Hon ble Supreme Court have to commence on 15.10.2020. In the abovesaid circumstances prayer sought for cannot be granted 9. Inviting our attention to one of the directions issued in Tamil W.A.NO.13020 :6: Nadu Medical Officers Association by the Hon ble Supreme Court learned Senior Government Pleader submitted that the State Government have to make a rule specifying a minimum period of service in rural area as mandatory so as to make in service candidate as qualified and till such time admission cannot be made by providing 40 reservation in this year 10. Inviting our attention also to a proceeding of the Director of Medical Education Chennai dated 6.10.2020 directing the Deans of Medical Colleges Chennai to send the particulars stated therein it is submitted by the learned counsel for the appellants that the said particulars are directed to be provided and therefore the judgment of the Hon ble Supreme Court has to be implemented in letter and spirit by the State Government National Medical Council of India and the Central Government. 11. Mr. George Varghese Perumpallikuttiyil learned counsel for the appellants further submitted that reservation provided to in service candidates cannot be equated or treated in par with communal reservation and therefore the judgment in Preethi Srivasthava s case is not applicable to the facts of this case. According to him the list of eligible W.A.NO.13020 :7: candidates for admission in in service quota for Super Speciality Course can be forwarded to the Union of India for counselling which is scheduled to commence tomorrow 12. Mr.Aravindakumar Babu learned Senior Government Pleader for the State of Kerala submitted that list is yet to be prepared 13. Heard the learned counsel for the parties and perused the material available on record 14. Direction issued by the Hon ble Supreme Court in Tamil Nadu Medical Officers Association s caseare as hereunder “1) that Entry 66 List I is a specific entry having a very limited 2) it deals with “coordination and determination of standards” in higher education 3) the words “coordination and determination of standards would mean laying down the said standards 4) the Medical Council of India which has been constituted under the provisions of the Indian Medical Council Act 1956 is the creature of the statute in exercise of powers under Entry 66 List I and has no power to make any provision for reservation more particularly for in service candidates by the concerned States in exercise of powers under Entry 25 List III 5) that Regulation 9 of MCI Regulations 2000 does not deal with and or make provisions for reservation and or affect the legislative competence and authority of the concerned States to make reservation and or make special provision like the provision providing for a separate source of W.A.NO.13020 :8: entry for in service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and or legislative competence to provide for a separate source of entry for in service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III 6) if it is held that Regulation 9 more particularly Regulation 9(IV) deals with reservation for in service candidates in that case it will be ultra vires of the Indian Medical Council Act 1956 and it will be beyond the legislative competence under Entry 66 List I. 7) Regulation 9 of MCI Regulations 2000 to the extent tinkering with reservation provided by the State for in service candidates is ultra vires on the ground that it is arbitrary discriminatory and violative of Articles 14 and 21 of the Constitution of India 8) that the State has the legislative competence and or authority to provide for a separate source of entry for in service candidates seeking admission to postgraduate degree diploma courses in exercise of powers under Entry 25 List III However it is observed that policy must provide that subsequent to obtaining the postgraduate degree by the concerned in service doctors obtaining entry in degree courses through such separate channel serve the State in the rural tribal and hilly areas at least for five years after obtaining the degree diploma and for that they will execute bonds for such sum the respective States may consider fit and proper it is specifically observed and clarified that the present decision shall operate prospectively and any admissions given earlier taking a contrary view shall not be affected by this 15. Reading of the above makes it clear that Regulation 9 of MCI Regulations 2000 does not deal with and or make provisions for W.A.NO.13020 :9: reservation and or affect the legislative competence and authority of the concerned States to make reservation and or make special provision like the provision providing for a separate source of entry for in service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and or legislative competence to provide for a separate source of entry for in service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III 16. Clause 7 of paragraph 20 makes it clear that Regulation 9 of MCI Regulations 2000 to the extent tinkering with reservation provided by the State for in service candidates is ultra vires on the ground that it is arbitrary discriminatory and violative of Articles 14 and 21 of the Constitution of India The Kerala Medical Officers Admission to Postgraduate Courses Under Service Quota Act 2008 is an Act to provide for quota of seats among Medical Officers of the State of and to a selection procedure for admission to various Post graduate Courses in the Medical Colleges under the service quota considering their service under the Government and for matters connected therewith or incidental thereto 17. Preamble of the Act states that WHEREAS it is expedient to W.A.NO.13020 :10: 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 18. Section 2(e) defines Postgraduate Course to mean the course of study after M.B.B.S. which may be a degree or diploma course declared as such in the prospectus. 19. Section 2(f) defines Postgraduate Course Selection Committee to mean the committee constituted under Section 4. 20. Section 2(g) defines prescribed to mean prescribed by rules made under this Act 21. Sectiondefines prospectus to mean the prospectus issued by the Director of Medical Education under the direction of the Government every year for admission to Postgraduate Course. 22. Section 2(i) defines rural area service to mean the service rendered by a Medical Officer in an area declared by the Government as rural area . Section 2(j) defines service to mean the service rendered by the Medical Officer under the Government for such period as may be prescribed. W.A.NO.13020 :11: 23. Section 2(k) defines service quota to mean the number of seats allotted for Medical Officers in the service of the State from time to time for admission to a Post Graduate Course of study on such terms and conditions as may be prescribed. Section 2defines State to mean the State of Kerala 24. Selection of Medical Officers for admission to Posgraduate Course Under the Service Quota. Notwithstanding anything contained in the Indian Medical Council Act 1956or 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 State under the service quota shall be made only under the provisions of this Act 25. Section 5 of the Act speaks about procedure for selection and the same reads thus 5. Procedure for selection. The Government may set apart seats not exceeding forty percent of the total seats available to state quota in an academic year for selection of Medical Officers under service quota considering their service under the Government for admission to Post Graduate Medical Courses in the Medical Colleges of the State in such manner as may be prescribed. The academic qualification for admission to the Post Graduate Course shall be M.B.B.S. degree with minimum fifty percent marks and the other qualifications shall be W.A.NO.13020 :12: such as may be prescribed The details of eligibility for admission the duration of courses allotment fee to be paid reservations of seats and such other details shall be published every year in the prospectus before the commencement of admission The Postgraduate Course Selection Committee shall finalise the selection list strictly based on the seniority in service of the Medical Officers and following such other criteria as may be prescribed The selection list finalised under sub sectionshall be published by the Post Graduate Course Selection Committee for the information of the applicants 26. Section 6 of the Act speaks about weightage for rural service and the same reads thus 6. Weightage for rural service. Every Medical Officer who has rural area service or difficult rural area service as the case may be in the State shall be given weightage in selection in such manner as may be prescribed." 27. Government of Kerala have issued order dated 30.3.2009 framing procedure for Post Graduate Admission under Service Quota. The said Government Order reads thus “GOVERNMENT OF KERALA Health & Family Welfare Department MES Academic Procedure for Post Graduate Admission under Service Quota Rules framed Orders HEALTH & FAMILY WELFAREDEPARTMENT W.A.NO.13020 :13: GO(MS)No. 93 09 H&FWD Dated Thiruvananthapuram 30.03.2009 Read: The Kerala Medical Officers Admission to Post Graduate courses under Service Quota Act 2008of the Act Government have power for make rules on the basis of this Act. Considering this Government here by make following rules to the Act 1. Short title and commencement —These rules may be called the Kerala Medical Officers Admission to Post Graduate Medical courses under Service Quota Rules 2009 ii) It shall come into force at once and will be applicable for admission to PG Medical Speciality Super Speciality Courses from the academic year 2009 10 onwards 2. Definitions In these rules unless the context otherwise requires a) Act means the Kerala Medical Officers admission to Post Graduate Medical courses under Service Quota Act 2008Government means the Government of Kerala c) Committee means the Post graduate Medical Course Selection Committee constituted under section 4 d) Meeting means any ordinary or extra ordinary meeting of the W.A.NO.13020 :14: e) Convener means the convener of the committee selected under the ii) Words and expressions used in these rules but not defined shall have the respective meanings assigned to them in the Act 3. The procedure for the functioning of the Committee — The Director of Medical Education shall be the convener of the committee. It shall be the function of the convener to place the provisional Rank List along with such individual applications and objections if any received before the post graduate selection committee constituted under the Act for the selection of the candidates ii) The Committee will prepare and publish the final Rank list for admission to the post graduate Medical Specilaity Super Speciality Courses under Service Quota 4. The procedure for selection of candidates under Service Quota i) The Selection of service candidates will be based on seniority in service. The total service will be reckoned as on the date of notification for inviting application ii) The applicants should be regular staff under Health Services Department Medical Education Service Insurance Medical ServiceMunicipal Services iii) The Minimum period of service under Government of Kerala to become eligible to apply shall be — a)2 years for Lecturers in Medical Education Service in the concerned discipline and W.A.NO.13020 :15: b)5 years for other State services Provided that unauthorized absence or absence due to Leave without allowanceswill not be counted for the purpose of calculating the minimum service and for the seniority iv) Interse seniority of actual physical service in the concerned department 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 below 90 days the Public Service Commission seniority will be the criterion v) In case sufficient number of service candidates having 2 years and 5 years of minimum service as stated in sub ruleare not available in any category the Period of minimum service can be relaxed by the Government before the date of allotment 5. The qualification other than academic qualification for i)The candidates belonging to MES HSD IMS Municipal Service having minimum service as above are qualified to be selected for admission to the 40% of the total seats for PG degree Super Speciality and Diploma set apart for them under service quota ii)The upper age limit will be 47 years for Post Graduate Degree courses and 48 years for Post Graduate Diploma course as on the 30th day of April. Suitable changes in the upper age limit may be made by the Government as per the terms included in the Prospectus for the courses notified from time to time W.A.NO.13020 :16: 6. The other criteria to be followed for selection. Lecturers who have post graduate Degree DNB in the specialty concerned in which they are working will not be eligible for admission. to Postgraduate Diploma Degree other than Superspeciality degrees under ii) The candidates who have already undergone PG Degree Diploma course under the service quota will not be eligible for selection to another PG Degree Diploma under such quota for a second time However such candidates will be eligible for selection to superspeciality degree courses in the concerned discipline iii) The candidates shall join the course to which they are selected and if they do not join the course or discontinue the course after joining they will not be considered for selection to such course under this quota 7. The procedure for weightage in selection for rural service — i) The candidates will be eligible for weightage for rural area service or difficult rural area service as per sec. 6 of the Act. This will be applicable for admission to Postgraduate Courses under the Health Service Quota only. A minimum of one year continuous service in Rural Area Difficult Rural Area service is necessary to get weightage. Those who have more than one year service in such areas will get more weightage. The weightage will be decided by the Committee on the basis of the number of years of service in rural difficult rural areas. The list of stations hospitals eligible for weightage under Rural areas Difficult Rural Areas will be notified by the Government from time to time. The list will W.A.NO.13020 :17: be reviewed by the Government once in 5 years. The length of service done in the stations only after the date of Government Order notifying the stations will be considered for giving weightage. The candidates shall attach certificate in this regard in such format as decided by the Government from time to time ii) Not withstanding the provisions as in 7 above there shall be separate sub quotas for admission to the candidates under Health Service Quota for the year 2009 as per the details given the sub clause iii) The Director of Health Services shall prepare separate rank list for the sub quotas mentioned below a)Seniority in Service Quota — Rank will be reckoned according to the seniority assigned to them in the service seniority list prepared by Director of Health Services b) Rural Service Quota — Applicants under this category should have a minimum of 5 years services out of which 3 years service should be in rural areas designated by the Government for this purpose as inabove c). Difficult Rural Area Quota— Minimum period of 5 years service out of which two years of effective service in Difficult Rural Areas to be designated by the Government for such purpose is fixed as eligibility to be considered for Difficult Rural Area Quota only the service rendered a Difficult Rural Area stations will be reckoned for calculating the seniority under this quota with candidates having more years of DRA service getting higher rank irrespective of the total service including stations W.A.NO.13020 :18: d) Leprosy Service QuotaOne seat for M.D. Dermatology is reserved for Doctors of Health Services Department having longest period of service in Leprosy Hospital Leprosy unit. One year of service in a Leprosy hospital will be equivalent to two years of service in a leprosy unit under the Directorate of Health Services. The minimum service required for claiming this seat will be 5 years service in the department out of which either one year service in a leprosy Hospital or two years of service in a Leprosy unit. The selection will be made on the basis of seniority in service in Leprosy Service as decided by the Director of Health Services. If there are no candidates under the above category the seat will be added to Difficult Rural Area Quota e) Tuberculosis Service Quota— One seat each in M.D. TB RD and Diploma in TB & RD is reserved under this quota. The minimum service required for claiming this seat will be 5 years service in the department out of which either one year service in a Tuberculosis Hospital or two years of service in a Tuberculosis unit The selection will be made on the basis of seniority in service in TB Service as decided by the Director of Health Services. If there are no candidates under the above category the seat will be added to Difficult Rural Area Quotaf) First Referral Unit Quota — One seat in Diploma in Anaesthesia is earmarked as FRU quota to be allotted to a doctor who had undergone training in Anaesthesiology under the scheme of First Referral UnitFamily Welfare Quota— One seat in DGO is reserved for Family Welfare Award Holders. If no eligible candidate is available the seat will be added to the DRAQ h) Prison service quota— One seat in D.Ortho is reserved for Prison service quota. If no eligible candidate is available the seat will be added to the DRAQ The Government will have power to continue the sub quotas for P.G. admission under Health Service Quota as in 7above for future years also if found necessary or to resort to admissions based on service seniority with suitable weightage given for service in Rural Areas Difficult Rural Areas as the case may be as provided in The list of Difficult Rural Area stations eligible for weightage admission under DRAQ as in iiiabove will be as per the rules Government orders to be issued by the Government from time to time and mentioned in the prospectus for the courses. For the calculation of seniority for admissions under RSQ as in iiihospitals stations designated as Rural stations in the list of Government allopathic medical institutions published by the Director of Health Services and or in the approved casualty units in Government hospitals will be considered The selection for Superspecialty degree courses under the service quota will be based on interse seniority in service subject to the conditions to be mentioned in the prospectus to be issued for W.A.NO.13020 :20: course from time to time apart from the provisions clause For the Post Graduate Diploma Degree courses candidates will be allowed to exercise their option for individual specialties college as per their ranks in the order of priority given below First — Medical Education Service QuotaThe allotment list of Medical Education Service Quota candidates will be first published and these candidates will be intimated through allotment memo. The details of unavailed seats under this quota will be published in the web site of DME Government. Other service quota candidates can opt for these unavailed seats also during counseling 9. Delegation of Powers The Government may by general of special order direct that any power exercisable by it or any head of department under these rules shall subject to such conditions if any as may be specified in the order be exercisable also by such officer or authority as may be specified in the order 10. Interpretation If any question arises relating to the interpretation of these rules it shall be referred to the Government whose decisions thereon shall be final 11. State Government s power to modify the rules — Notwithstanding anything contain in these rules the State Government W.A.NO.13020 :21: may on their own motion or otherwise review modify any of the provisos clauses of the existing rules to incorporate new provisos clauses in the rules.” Dr. VISHWAS MEHTA By Order of the Governor Secretary to Government” 28. Reading of the above statutory provisions as well as the rules framed by the Government make it clear that there is a provision for reservation for in service candidates for admission to Postgraduate Super 29. The fact that 40% reservation is provided for both admission in Postgraduate Super Speciality courses in Government of Kerala has not been disputed by the learned Senior Government Pleader. However it could be deduced that after the decision in State of UP v. Dinesh Singh Johal reported in9 SCC 749 Government of India have issued a notification dated 31.7.2017 substituting the regulations. 30. Forty percent reservation was being continuously followed from 2009 2010 till the Central Government issued the notification No.MCI 18(1) 2017 Med. 128371 dated 31.7.2017. Correctness of the judgment in Dinesh Singh Johal s case was doubted and therefore that is under reference W.A.NO.13020 :22: 31. Now that the Hon ble Supreme Court in Tamil Nadu Medical Officers Association s case held that the State has got authority and competence to provide reservation. Hence we are of the considered view that directions issued by the Hon ble Supreme Court in Tamil Nadu Medical Officers Association is binding on the National Medical Commission of India State Government Union of India. 32. The contention of the learned standing counsel for National Medical Commission and the learned Central Government Counsel that the Hon ble Supreme Court in Tamil Nadu Medical Officers Association s casehas not considered the dictum laid down in Preethi Srivasthavacannot be countenanced for the reason that in Preethi Srivasthavathe standards required for admission was sought to be reduced on the basis of communal reservation and in such circumstances the Hon ble Supreme Court interfered with 33. In K.Duraisamy and Another v. State of Tamil Nadu and Others reported in2 SCC 538 the Hon ble Supreme Court has made it clear that reservation provided to in service candidates cannot be equated or treated as par with communal reservation. For brevity W.A.NO.13020 :23: paragraph 8 of the judgment is extracted hereunder “That the Government possess the right and authority to decide from what sources the admissions in Educational Institutions or to particular disciplines and courses therein have to be made and that too in what proportion is well established and by now a proposition well settled too. It has been the consistent and authoritatively settled view of this Court that at the super speciality level in particular and even at the Post Graduate level reservations of the kind known as protective discrimination in favour of those considered to be backward should be avoided as being not permissible. Reservation even if it be claimed to be so in this case for and in favour of in service candidates cannot be equated or treated on par with communal reservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the quota reserved on communal 34. In the light of the decision in K. Duraisamy s case Preethi Srivasthava s case cannot be made applicable to the case on hand. Fact remains that the Government of Kerala have been providing reservation during the period 2017 2019 and the same has been suspended giving effect to the notification of the W.A.NO.13020 :24: Central Government as stated supra. Now that the Hon ble Supreme Court has made it clear that the State has the right to provide reservation the position as on 2009 2010 has to be restored as per the provisions in Kerala Medical Officers Postgraduate and Service Quota Act 2008 and the rules framed thereunder. State Government is bound to implement the judgment of the Hon ble Supreme Court in Tamil Nadu Medical Officers Association s casegiving effect to the same as per the statutory provisions and the rules. State is yet to prepare the list. Appellants and others have participated in the examination conducted for admission to the Super Speciality courses which is the subject matter in this appeal. State Government is directed to prepare a list of eligible candidates for admission against general and candidates against 40% reservation earmarked for in service candidates and accordingly forward the list of candidates both general as well as in service candidates to Director General of Health Servicesthe authority for counselling the candidates for admission to the Super Speciality courses 35. At this juncture it is relevant to note that the Government of Tamil Nadu vide letter dated 6.10.2020 have directed the Deans of various Medical Colleges in Chennai to forward the list of revised seat matrix for W.A.NO.13020 :25: the Super Speciality DM M.Ch. Courses for the academic session 2020 2021 to the Director General of Medical Education before 4 pm. 36. In the light of the above discussion and decisions State of Kerala represented by Secretary to the Government Health and Family Welfare Department Director of Medical Education Directorate of Medical Education Trivandrum and Commissioner of Entrance Examinations Housing Board Buildings Trivandrum are directed to prepare the list of candidates eligible for admission in general category as well as in service candidates as stated supra and send the list to the Directorate of Medical Education New Delhi by tomorrow before 5 pm for counselling Respondent No.1 is directed to fix the date of counselling accordingly insofar as in service candidates in Kerala for admission to Super Speciality courses is concerned. 37. Learned Senior Government Pleader and learned Central Government Counsel are directed to communicate this judgment to the respective authorities for implementation of the same. In case if there is a requisition submitted claiming reservation exclusively for admission as against 40% provided for in service candidates by the appellant and others W.A.NO.13020 :26: through online such applications be received and acted upon by Directorate of Medical Education Kerala and others. For the foregoing reasons the impugned interim order is set aside Writ appeal is allowed as above. Chief Justice Shaji P.Chaly Judge W.A.NO.13020 :27: PETITIONER S S EXHIBITS TRUE COPY OF THE KERALA MEDICAL OFFICERS ADMISSION TO POST GRADUATE MEDICAL COURSES UNDER SERVICE QUATA RULES 2009 ISSUED BY 3RD RESPONDENT STATE OF KERALA TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR ADMISSION TO MEDICAL SUPER SPECIALITY COURSES FOR THE YEAR 2016 ISSUED BY THE STATE OF KERALA 3RD RESPONDENT THE TRUE COPY OF THE ORDER DATED 31 08 2020 PASSED BY THE CONSTITUTION BENCH OF THE IN WPC 196 2018 AND OTHER CONNECTED MATTERS P.A. to Judge

Summary: In the case of Dr. Bilu B.S. v. Union of India &amp; Anrs., (WA.No.1302 OF 2020), the Kerala High Court stated that in the PG – Super Speciality Medical Course, the state can provide in-service quota. The facts of the case is that being aggrieved by the directions in the common interim order which was made in W.P.(C) Nos.20135, 20256 and 20572 of 2020,dated on 5.10.2020, declining to restrain Union of India, represented by its Director General of Health Services, New Delhi (respondent No.1 therein), from proceeding with the counselling/admission to 40% seats in in-service quota and against the directions of the writ court, to respondent No.1, to consider Ext.P10 representation; direction to the State of Kerala represented by its Secretary to the Government, Health and Family Welfare Department, Trivandrum (respondent No.3 therein), to consider Ext.P11 representation, and the direction to the National Medical Council of India (respondent No.6 therein) to consider Ext.P12 representation, instant writ appeal is filed. The judges in this case was Chief Justice M.S. Manikumar, &amp; Justice Shaji. P. Chaly. It was also submitted by the respondent No. 6, that the National Medical Commission of India represented by its Secretary, that in needful situations Registry is under the direction to carry out necessary amendments whenever required. The judgment of the court relied on the decision in “Tamil Nadu Medical Officers Association and Others v. Union of India and Others reported in 2020 SCC Online SC 699, which answered a reference, in particular, to the conclusions of the Hon’ble Supreme Court in the above said decision, Mr. George Varghese Perumpallikuttiyil, learned counsel for the appellants submitted that the State Government have legislative competence and authority to make reservations and/or provisions for admissions to Postgraduate/Super Speciality courses.” The judgment in this case was “Reading of the above statutory provisions, as well as the rules framed by the Government, make it clear that there is a provision for reservation for in-service candidates for admission to Postgraduate/Super Speciality courses. The fact that 40% reservation is provided for both admission in Postgraduate/Super Speciality courses, in Government of Kerala, has not been disputed by the learned Senior Government Pleader. However, it could be deduced that, after the decision in State of UP v. Dinesh Singh Johal reported in (2016) 9 SCC 749, Government of India have issued a notification dated 31.7.2017 substituting the regulations.” “Now that the Hon’ble Supreme Court in Tamil Nadu Medical Officers Association’s case (cited supra), held that the State has got authority and competence to provide reservation. Hence, we are of the considered view that directions issued by the Hon’ble Supreme Court in Tamil Nadu Medical Officers Association (cited supra) is binding on the National Medical Commission of India/State Government/Union of India.” “The contention of the learned standing counsel for National Medical Commission and the learned Central Government Counsel that the Hon’ble Supreme Court in Tamil Nadu Medical Officers Association’s case (cited supra), has not considered the dictum laid down in Preethi Srivasthava (cited supra), cannot be countenanced for the reason that in Preethi Srivasthava (cited supra), the standards required for admission was sought to be reduced on the basis of communal reservation and in such circumstances, the Hon’ble Supreme Court interfered with.” “In the light of the above discussion and decisions, State of Kerala represented by Secretary to the Government, Health and Family Welfare Department (respondent No.3), Director of Medical Education, Directorate of Medical Education, Trivandrum (respondent No.4) and Commissioner of Entrance Examinations, Housing Board Buildings, Trivandrum (respondent No.5) are directed to prepare the list of candidates eligible for admission in general category, as well as in-service candidates, as stated supra, and send the list to the Directorate of Medical Education, New Delhi, by tomorrow before 5 pm for counselling. Respondent No.1 is directed to fix the date of counselling accordingly, insofar as in-service candidates in Kerala for admission to Super Speciality courses is concerned.” It was also held that “Learned Senior Government Pleader and learned Central Government Counsel are directed to communicate this judgment to the respective authorities for implementation of the same.  In case, if there is a requisition submitted claiming reservation, exclusively for admission, as against 40% provided for in-service candidates by the appellants and others through online, such applications be received and acted upon by Directorate of Medical Education, Kerala and others.   For the foregoing reasons, the impugned interim order is set aside. Writ appeal is allowed as above.”