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2016 Supreme(Ker) 122
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN and A.M. SHAFFIQUE, JJ.
AARIF LATHEEF & ORS. - APPELLANTS
Vs.
DR. ASHA K. JOHN & ORS. - RESPONDENTS
W.A. Nos.660, 539, 553, 556, 574 & 575 of 2016
Decided On : 01-04-2016
For the Appellant : SRI. C.P. MOHAMMED NIAS
For the Respondent: SRI. T.B. HOOD, SR. GOVERNMENT PLEADER, SRI. P.I. DAVIS, SRI. GEORGE POONTHOTTAM.
Headnote:
Constitution of India,1950 - Article 226 - Education Matter - Admission - Eligibility Criteria - Whether Regulation 9 which provided for admission in Post Graduate Medical Courses is to be on the basis of merit as disclosed in the Entrance Examination, has to be treated as still surviving and all admissions in post graduate courses have to be given on the basis of merit criteria - Held, Portion of Regulation 9 which provided for admission in Post Graduate Medical Courses is to be on the basis of merit as disclosed in the Entrance Examination, has to be treated as still surviving and all admissions in post graduate courses have to be given on the basis of merit criteria. The submission of the petitioners that Regulation 9 is not in existence, hence the statutory provision of the State have to be treated to be operative with full force, there being nothing in the Regulations of the MCI to be treated to be contradictory, cannot be accepted - There cannot be any discrimination between in-service candidates in their admission once they are held eligible to appear in the entrance examination. The State Government in the Prospectus has given eligibility to all candidates who have minimum two years service, hence all in-service candidates who have two years service or more form one class and appeared in the Entrance Examination, their admission to the Post Graduate Medical Course has to be on the basis of merit as reflected in the Entrance Examination and five years service candidates cannot be heard to say that they alone are entitled to take admission at the first instance disregarding the claim of two years service candidates even if having more merit.
Ashok Bhushan, J.
All these Writ Appeals except W.A. No.556 of 2016 arise out of W.P(C) No.39448 of 2015. Writ Appeal No.556 of 2016 arises out of the judgment in W.P(C) No.3504 of 2016. Common issues of fact and law being involved in all these Writ Appeals they have been heard together and are being decided by this common judgment. Writ Petitioners are the "in-service" candidates who have completed five years of service whereas the appellants are "in-service" candidates who have completed two years of service. There is inter-se dispute between the candidates who have completed five and two years service, respectively regarding admission to Post Graduate Medical Course, 2016. Writ petitioners who have completed five years of service shall be referred to as petitioners whereas the in-service candidates who have completed two years of service shall be referred as appellants.
2. Brief facts and sequence of events giving rise to the Writ Appeals are: The issues which have been raised in this batch of Writ Appeals relate to admission to Post Graduate Medical Course, 2016 for "in- service" candidates. Prospectus for admission to Post Graduate Medical Degree/Diploma Course, 2016 as approved by the State Government by Government Order dated 10.12.2015 was issued. Clause 4.1 of the Prospectus provided for eligibility of admission. Clause 7.1 provided for eligibility for service quota. Clause 7.1.1 provided that applicants under service quota should have completed a minimum of two years service within a continuous period of three years under regular appointment in the concerned Department to become eligible to apply. In accordance with the Prospectus as issued after approval of the Government by Order dated 10.12.2015 in-service candidates who were eligible under clause 7.1.1 and who have completed two years regular service applied for appearing in the Post Graduate Medical Entrance Examination, 2016. The Entrance Examination was conducted by the Commissioner for Entrance Examinations, Government of Kerala on 31.01.2016. Writ Petition No.39448 of 2015 was filed by Dr. Asha K.John who had to her credit seven years service. It was stated that Prospectus for the Post Graduate Medical Course, 2016, which was uploaded in the website, contained in clause 7.1.1. the eligibility under service quota to only those who have completed a minimum five years on regular duty which prescription was withdrawn on the basis of the Government Order dated 10.12.2015 by which clause 7.1.1 as proposed was modified. Clause 7.1.1. of the Prospectus which was issued consequent to the Government Order dated 10.12.2015 contained the following:
"7-1 Eligibility for service quota
7-1.1 The eligibility criteria for the service quota are the same as laid down in Clause 4. The applicants under Service Quota should have completed a minimum period of 2 years on duty within a continuous period of three years under regular appointment in the concerned Department to become eligible to apply. Provisonal service (under MES/DHS/IMS/MS) if any, before the regular appointment will not bee considered."
Petitioner's case in the Writ Petition was that the State Government has already enacted legislation, namely, Kerala Medical Officers' Admission to Post Graduate Courses Under Service Quota Act, 2008 (for short, "the 2008 Act") under which Rules have been framed, namely, Kerala Medical Officers' Admission to Post Graduate Courses Under Service Quota Rules, 2010 (for short, "the 2010 Rules"). Rule 4(iii) of the Rules provides that the minimum period of service under Government to become eligible to apply for Service Quota shall be two years for Lecturers in Medical Education Service in the concerned discipline and five years for other State Service. The Prospectus in so far as the change made in clause 7.1.1. is not justifiable. Petitioner in the Writ Petition prayed for the following reliefs:
"(i) Declare that only the candidates with minimum five years service under the Governm
