SAJIL M S Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petitioners in these connected WP (C)s. are medical graduates who participated in the Entrance examination conducted by the Commissioner for Entrance Examinations for admissions to Post - graduate Medical Degree / Diploma Courses 2011 and have obtained high ranks making them eligible for admission to the courses applied for. The Entrance Examination was conducted on 09/02/2011 based on the prospectus issued on 04/01/2011. Rank list was also prepared on 14/02/2011 based on the marks obtained by the candidates in the Entrance examination. However, after preparation of the rank list, the Director of Medical Education issued an amendment to the prospectus on 22/02/2011 providing weightage marks to Government Medical Officers who participated in the Entrance Examination which is an addition at the rate of 10% of the marks obtained in the Entrance Examination for every year of service in difficult rural areas subject to a maximum of 30%. As a result of the weightage marks given to Medical Officers, the petitioners who secured high ranks in the Entrance Examination conducted for admissions in the open merit quota went down in the list leaving no chance to them for admissions. For example, the candidate who secured rank No.1257 in the Entrance Examination, by virtue of the weightage of 30% marks eligible to him for the 3 years service rendered in difficult rural areas as provided in the amendment issued to the prospectus after preparation of the rank list, goes to rank No.24. Similarly another candidate who secured rank No.989 by virtue of two years' of service he had in difficult areas, goes to rank No.22. The weightage marks now granted to one section of candidates who participated in the Entrance Examination has therefore completely upset the rank list prepared based on the Entrance Examination thereby denying opportunity for admission to petitioners who but for the weightage marks given to some others based on the amendment to the prospectus later issued, would have got admissions. The petitioners have, therefore, filed these writ petitions challenging the amendment made to the prospectus and the weightage marks given to certain candidates subsequent to the Entrance Examination and preparation of rank list. The learned Single Judge admitted the writ petitions and directed admissions to be given based on the original prospectus i.e. without awarding any weightage mark to certain candidates based on the amendment introduced to the prospectus after the examination and preparation of rank list. When writ appeals filed against interim orders came before us, we decided to hear the matter and dispose of the same finally. We have heard various counsel appearing for the petitioners, counsel appearing for the respondents, the Government Pleader and also Standing Counsel appearing for Medical Council of India. The annexures referred to in this judgment are those produced in WP (C) No. 9638/2011.

(2.) Ext. P1 is the prospectus issued by the Director of Medical Education wherein it is stated that altogether 430 seats in P.G. Degree courses and 160 seats in Diploma courses are available for admission in the Government Medical Colleges in the State. 50% of the seats are reserved for allotment under the All India quota and, therefore, only 215 seats for P.G. Degree courses and 80 seats for P.G.Diploma courses are available for admission by the Directorate of Medical Education. Reservations are provided to various categories from out of the 50% available for admissions to be given by the Directorate. After providing 10% for SC and ST, 9% for OBC and 3% for physically handicapped, 40% of the remaining seats are reserved for inservice candidates i.e. for Medical Officers serving the Government Hospitals in the State. The balance of around 38%, i.e. 83 seats only are available for admissions to Post Graduate degree courses in the open merit quota for general candidates in the State. While the regulations of the Medical Council of India prescribe method for admissions to candidates from open merit quota which also provide guidelines on preferences and weightages to Medical Officers, the State has made a separate legislation called 'The Kerala Medical Officers' Admission to Post - graduate Courses under Service Quota Act, 2008" which in S.5 provides reservation to it's Medical Officers for admission to Post - graduate medical courses upto 40% of the seats available to the State. S.6 of the said Act provides weightage marks for difficult rural area service. However, the special statute made by the State providing quota for Medical Officers and weightage for service in difficult rural areas for admission to Post - graduate Medical courses does not provide for any Entrance Examination for their selection. A Division Bench of this Court in Mohammed Riyas v. State of Kerala reported in 2011 KHC 275 : 2011 (2) KLT 294: ILR 2011 (2) Ker. 279 held that Government Medical Officers also have to undergo very same Entrance Examination for admission to Post - graduate medical courses. Even though this judgment was rendered with reference to admissions made in 2009 and 2010, the very same Division Bench of this Court in WP (C) No.8786/2011 held that the above reported judgment applies for admissions to Post - graduate Medical courses commencing in 2011. The Supreme Court substantially confirmed this judgment with a rider that those service candidates who wrote the entrance examination conducted need not write the examination yet to be conducted for filling up the balance seats in service quota. By virtue of the above judgments, the Directorate of Medical Education and Commissioner of Entrance Examination are required to conduct another entrance examination for Medical Officers for admissions to Post - graduate Medical courses in the quota reserved for them. So much so, the admissions to be given from the rank list prepared in the Entrance Examination conducted based on Ext. P1 prospectus has to be limited to the seats in the open merit quota including the candidates covered by other reservations. Both sides have clarified to us that out of the total 215 seats available for Post - graduate Degree courses, 67 seats are reserved for Medical Officers of the State for which examination has to be now separately conducted based on the judgments above referred and after setting apart the seats reserved for them and to other categories, the seats available in the open general merit quota are only 83. However, what requires special mention is that neither under the State Act providing for reservation for admissions to Medical Officers to Post - graduate Medical courses nor under Ext. P1 prospectus they were required or entitled to write the common Entrance Examination for admissions to the quota reserved for them. In fact, only few of the Medical Officers seeking admission for Post - graduate Medical courses participated in the common Entrance Examination conducted by the Commissioner for admissions in the open merit quota. Ext. P1 also did not provide for any weightage marks to Medical Officers participating in the common Entrance Examination. However, one of the Medical Officers filed a representation to the Government to provide for weightage mark for difficult rural area service and when the Government did not consider the same, a writ petition was filed before this Court and a learned Single Judge vide Ext. P6 judgment dated 02/02/2011 directed the Government to consider the representation to provide for weightage mark. Based on the representation, the Government issued Ext. P5 on 22/02/2011 providing grant of weightage mark to Medical Officers in the following lines:

(3.) As already stated, the above addition was made to the prospectus only after conduct of examination based on Ext. P1 prospectus and after preparation of rank list. The weightage mark to which some of the Medical Officers who participated in the Entrance Examination are eligible, has completely upset the rank list prepared based on the Entrance examination. The first contention raised by the petitioners is that the prospectus cannot be subsequently amended to provide weightage mark to a category of candidates who participated in the Entrance Examination. Their further case is that the weightage mark applies only while considering admission in the seats reserved for Medical Officers and it cannot be granted to any candidate competing for admission in the general open merit quota to which the petitioners belong. The contention raised by respondents is that omissions in the prospectus could be made up through amendment that could be notified after conduct of the entrance examination and preparation of the rank list. On merit the respondents have contended that Regulations prescribed by the Medical Council of India apply for Post Graduate Medical admissions to all categories and the weightage marks provided under the amendment notification is in terms of the Medical Council Regulations, and so much so, there is no scope for interference. The petitioners have questioned the rationality of weightage marks up to 30% provided to Medical Officers, and in support of their contentions they have relied on the decisions of the Supreme Court in Dr. Dinesh Kumar and Others v. Motilal Nehru Medical College, Allahabad and Others reported in 1986 KHC 792 : 1986 (3) SCC 727 : AIR 1986 SC 1877 and in Dr. Snehalata Patnaik and Others v. State of Orissa and Others reported in 1992 (2) SCC 26 . Learned counsel appearing for the respondents including the Government Pleader have relied on the decision of the Supreme Court in State of M.P. and Others v. Gopal D.Tirthani and Others, reported in 2003 KHC 1512 : 2003 (7) SCC 83 : AIR 2003 SC 2952 : JT 2003 (6) SC 204, and contended that preference through weightage marks in entrance examination for admission to Post Graduate courses is permissible for inservice candidates. The contention raised by the learned counsel appearing for the respondents including the learned Government Pleader and learned Standing Counsel for the MCI is that there is an omission in Ext. P1 prospectus in as much as the amendment made by the Medical Council of India on 17/11/2009 to the 'Post Graduate Medical Education Regulations, 2000' which provides for weightage marks to inservice candidates, was not incorporated in the prospectus. The above amendment made by the Medical Council in the Post Graduate Medical Education Regulations, is as follows: