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2010 Supreme(Ker) 532

High Court of Kerala
THE HONOURABLE MR. JUSTICE S. SIRI JAGAN
DR. Bindu Varghese & Others
Versus
State Of Kerala & Others
W.P.(C). Nos. 14981, 15378, 15481, 15598, 15882, 16039, 16101, 16655, 16743, 17201 & 24829 of 2010
Decided On : 15-09-2010

Advocates Appeared:
For the Petitioners:Elvin Peter P.J., Smt. Pooja Surendran, Advocates. For the Respondents:R1 to R3- T.B. Hood, Govt. Pleader, R4 to R6 -K.I. Mayankutty Mather, K.S. Sanjeev Kumar, Mahesh V. Menon, Advocates.

Headnote:

MEDICAL ADMISSIONS - SUPER SPECIALITY POST GRADUATE COURSES - ELIGIBILITY CRITERIA - PREFERENCE TO CANDIDATES WHO HAD DONE MBBS OR MD/MS FROM MEDICAL COLLEGES IN KERALA - HELD, SUCH PREFERENCE IS UNCONSTITUTIONAL, ARBITRARY, DISCRIMINATORY AND ILLEGAL.

Fact of the Case:

The petitioners, aspirants for admissions to super-speciality postgraduate medical courses in various disciplines in the merit stream, who are aggrieved by certain eligibility criteria fixed by the government in the prospectus for admissions to those courses, except the petitioner in W.P. (C) No. 24829/10, challenged the clauses in the prospectus and Ext.P8, which amended the prospectus, on the ground that the same are violative of their fundamental rights guaranteed under the Constitution of India.

Finding of the Court:

The court held that the impugned clauses in Ext. P1 prospectus, both before and after the amendment to the same by Ext. P8 Government Order, are unconstitutional, arbitrary, discriminatory and illegal and quashed the same, directing the Government not to make admissions based on the same.

Issues: 1. Whether the impugned clauses in the prospectus, which provide for preference to candidates who had done MBBS or MD/MS from medical colleges in Kerala for preparation of rank list, are violative of the fundamental rights of the petitioners guaranteed under the Constitution of India? 2. Whether the impugned clauses are contrary to the norms prescribed for admission by the Medical Council of India and the Supreme Court of India?

Ratio Decidendi: 1. The Supreme Court has held that the scheme of Indian Medical Council Act, 1956, does not give an option to the State Government/Universities to follow or not to follow the standards laid down by the Indian Medical Council and that the State Government/Universities must necessarily be guided by the standards prescribed by the Medical Council of India, if their degrees or diplomas are to be recognised under the Medical Council of India Act. 2. The Supreme Court has also held that all kinds of reservations and institutional preferences in admissions to super-speciality post-graduate medical courses are prohibited. 3. The impugned clauses are clearly against the standards prescribed by the Medical Council of India and therefore unsustainable, going by the Supreme Court decisions quoted above.

Final Decision: All the writ petitions except W.P. (C) No. 24829/10 are allowed. Consequently, W.P. (C) No. 24829/10 is dismissed. The Government shall keep in mind that since ours is a country governed by rule of law, their good intentions in incorporating the impugned clauses, however lofted those may be, can be translated into practice only in accordance with the law of the land.

Judgment :

1. In the Kerala State, the imbroglio in the field of admissions to medical courses continues unabatedly every year, without any solution in sight in the near future. Sadly, it appears as if for some reason or other, every step taken by the government in the field of admissions to medical courses only adds to the confusion every time. In these writ petitions, the scene shifts to the field of admissions to super-speciality postgraduate medical courses in Kerala, for this year. Since the issues arising in all these writ petitions are one and the same, these writ petitions have been heard together and are being disposed of by this common judgment. For convenience in preparing judgment, unless otherwise specifically indicated otherwise, the rank of parties and exhibits referred to herein below shall be as obtaining in W.P. (C) No.16039/10.

2. The petitioners herein are aspirants for admissions to the super-speciality postgraduate medical courses in various disciplines in the merit stream, who are aggrieved by certain eligibility criteria fixed by the government in the prospectus for admissions to those courses, except the petitioner in W.P. (C) No. 24829/10. Ext. P1 is the prospectus issued by the Government of Kerala for such admissions, this year. The challenge originally was against three sub clauses of clause no. III(a) thereof, under the main heading "Eligibility for admission" with the sub heading `Nativity'. The same reads thus:

"III. Eligibility for admission:

(a)Nativity: Applicants should have satisfied the following conditions.

(i) They should be Indian Citizens.

(ii) Has passed the PG Degree (MD/MS)/Dip.N.B from any of the Medical Colleges recognised by Medical Council of India.

(iii) Has done at least one year compulsory rural service/Senior residency/Government service in any of the Government Medical Colleges/Government Hospitals in Kerala.

(iv) In case sufficient number of candidates fulfilling the condition as per (iii) above is not available, candidates who are otherwise qualified will also be considered, based on the merit in the entrance test.

(v) Preference shall be given to the candidates, who had done MBBS or MD/MS from the Medical Colleges in Kerala, for preparation of rank list. In case sufficient number of candidates in the above category is not available for admission for any reason, candidates from other states will be considered for the balance seats, based on the merit in the entrance test."

In the writ petitions counter affidavits were filed by the Government, in paragraph 5 ofwhich, they have submitted as follows:

'5. Regarding Clause III(a) (v), which provides that preference shall be given to candidates who had done MBBS or MD/MS from the Medical Colleges in Kerala for preparation of rank list, it is submitted that Government are willing to modify the said Clause in the following manner.

"Preference shall be given to Indian Citizens of Kerala origin/children of All India Service (AIS) Officers (non Keralites) allotted to Kerala Cadre/those who had done MBBS/MD/MS from the Medical Colleges in Kerala for preparation of rank lists. In case sufficient number of candidates in the above category is not available for admission for any reason, candidates from other States will be considered for the balance seats, based on the merit in the Entrance Examinations."'

3. These cases were originally taken up for hearing on 15-7-2010. Counsel for the petitioners were heard on that day and arguments spilled over to the next day. When hearing resumed on 16-7-2009, the learned Government Pleader sought for time. Therefore I passed the following interim order on 16-7-2010 and adjourned the hearing of the cases, as desired by the Government Pleader:

'After hearing these writ petitions for sometime the learned Government Pleader today submitted as follows:

As per the MCI Regulations, the first allotment has to be completed by 26.07.2010. The admissions have to be completed only by 30.09.2010. In the meanwhil


















































































































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