VIPIN Vs. STATE OF KERALA

JUDGEMENT

(1.) 1. This Writ Petition comes to the Division Bench on a reference made by the learned single Judge.

(2.) The Petitioner is the first rank holder in the open merit quota in the Entrance Examination for Admission to Super Speciality Post Graduate Courses namely, M.Ch. in Gastroenterology Surgery. There is only one seal available for that super speciality this year. That seat is earmarked for being allotted to an in-service candidate. The Petitioner challenges it as one amounting to the reservation of the lone seat, which according to him would result in 100% reservation. He pleads that the said seat should be allotted only on the basis of open merit, by competition and an in-service candidate cannot by reason of such earmarking, be given any preference. In that premise, he seeks an order quashing the earmarking of the single seat for M.Ch. in Gastroenterology Surgery for the in-service candidates as contained in the prospectus and for a declaration that Section 5(1) of the Kerala Medical Officers' Admission to Post Graduate Courses under Service Quota Act, 2008, hereinafter referred to as "the State Act" and Rule 5(i) of the Rules framed thereunder providing for 40% reservation to service quota taking into account the total seats in all the 10 disciplines in the super specialty courses together, instead of treating each Speciality separately, are unconstitutional. He also seeks a direction that he be allotted the seat in Super Speciality Course, namely, M.Ch. in Gastroenterology Surgery in the Thiruvananthapuram Medical College for this year, he being the first rank holder in the open merit list.

(3.) Similar question arose in 2006 in W.P.(C). 15210/2006. The learned single Judge upheld the decision of the State Government to earmark the seat. Reliance was then placed on Dr. Preeti Srivastava v. State of Madhya Pradesh,1999 3 KerLT 31 K. Duraisamy v. State of Tamil Nadu, 2001 2 SCC 538and State of M.P. v. Gopal D. Tirthani, 2003 7 SCC 83. That matter went up to the Division Bench as W.A. 1652/2006. The Bench noted that the Appellant in that case had competed in the examination along with the candidate who aspired for admission and the terms of the prospectus would stand in his way. However, the Bench had noticed that the point raised by the Appellant in that case was one worth consideration.