DR. TRIVEDI MAHARSHI DINESHBHAI vs STATE OF KERALA - 2022 Supreme(Online)(KER) 42381

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2022 Supreme(Online)(KER) 42381

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 16TH DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944 WP(C) NO. 38205 OF 2022 PETITIONERS:
1 DR. JINO SEBASTIAN AGED 32 YEARS S/O SEBASTIAN, SENIOR RESIDENT, SURGICAL ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, RESIDING AT EARIMATTATHIL (H) KAROOR P.O., PALA, KOTTAYAM, PIN-686574.
2 DR. ARUN.K. BALAN, AGED 33 YEARS S/O BALAN, SENIOR RESIDENT, SURGICAL ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, RESIDING AT ANJALI H, MELAKKAM, MANJERI, MALAPPURAM, PIN : 676123
3 DR.SIVAPRAGASH, AGED 32 YEARS S/O SAMIKKANNU, SENIOR RESIDENT, SURGICAL ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, RESIDING AT 4/425, FIRST CROSS, AMMAN NAGAR, KATTUR, TRICHY, TAMILNADU, PIN -620019.
4 DR. SYAMKUMAR HARIHARAN, AGED 32 YEARS S/O HARIHARAN, SENIOR RESIDENT, SURGICAL ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, RESIDING AT #801 A BLOCK, DIVYA MSR GATEWAY APARTMENTS, MATHIKERE, GOKULA, BANGALORE 560054.
5 DR. ABINAYA.R.N., AGED 35 YEARS D/O ANITHA, SENIOR RESIDENT, SURGICAL ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, RESIDING AT 4C, ARTECH EMPIRE, PATTOOR JUNCTION, THIRUVANANTHAPURAM, PIN -695035.
6 DR. DEEPAK BOSE, AGED 41 YEARS S/O M.C.BOSE, SENIOR RESIDENT, GYNAECOLOGICAL ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, RESIDING AT 'ASHIRWAD', ELUKKATTUPARAMBA, PARAMBATH, KARUVISSERY P.O., KOZHIKODE, PIN : 673010.
7 DR.AJAY SANKAR, AGED 36 YEARS S/O UDAYASANKAR P., SENIOR RESIDENT, PEDIATRIC ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011, RESIDING AT HOUSE
296-C, NEERAZHI LINE, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011.
8 DR.THIRUMALA.C., AGED 31 YEARS D/O ANITHA, SENIOR RESIDENT, PEDIATRIC ONCOLOGY, REGIONAL CANCER CENTRE, POST OFFICE BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM – 695011, RESIDING AT # 91, 2ND MAIN, 4TH CROSS, WIDIA LAYOUT, VIJAYNAGAR, BANGALORE 560040.
BY ADVS.
R.T.PRADEEP M.BINDUDAS K.C.HARISH RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 HEALTH AND FAMILY WELFARE DEPARTMENT, REPRESENTED BY ITS PRINCIPAL SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 REGIONAL CANCER CENTRE (RCC)
REPRESENTED BY ITS DIRECTOR, P.O. BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695
011.
4 THE DIRECTOR, REGIONAL CANCER CENTRE, P.O. BOX NO.2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695 011.
5 KERALA UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE.P.O., THRISSUR -680596
6 NATIONAL MEDICAL COMMISSION REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR-8, DWARAKA, NEW DELHI-110 077.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA ATHUL SHAJI SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2022, ALONG WITH WP(C).6122/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 16TH DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944 WP(C) NO. 6122 OF 2022 PETITIONERS:
1 DR. TRIVEDI MAHARSHI DINESHBHAI AGED 31 YEARS S/O. DINESHBHAI TRIVEDI, A-2/70, INDRADEEP SOCIETY, OPP.VIKAS GRUH, JAMNAGAR, GUJARAT-361008
2 DR.MANU PAUL, AGED 34 YEARS S/O.T.M.POULOSE, THELAPPILLY HOUSE, AIKKATTUKADAVU, PEECHANIKKADU, PULIYANAM P.O., ANGAMALY, ERNAKULAM-683 572
3 DR.MINTU MATHEW ABRAHAM, S/O. K.M.ABRAHAM, CHIRAVATHARAYIL HOUSE, PARAMPUZHA P.O., KOTTAYAM-686 004
4 DR.ARUN.V., S/O. MR.K.C.VASUDEVAN, KUMARASSERIL HOUSE, MULAKULAM NORTH P.O., PIRAVOM, ERNAKULAM DISTRICT, PIN-686 664
5 DR.GAYATRI GOPAN, D/O. K.GOPALAKRISHNAN, DWARAKA, NEXT TO SBI (NEAR ARTECH TOWERS), SASTHAMANGALAM, THIRUVANANTHAPURAM,PIN-695 010
6 DR.HARISH KUMAR, FLAT NO.3, TC 13/1566-5, (BREA-70), KALPANA ENCLAVE, SAUBHAGYA LANE, KALAKAUMUDI ROAD, KUMARAPURAM, THIRUVANANTHAPURAM-695 011
7 DR. VENKATANGA SRINIVAS.M., BE2, BHASKAR SADHANAM, BREEZE ENCLAVE STREET, ARAKKULAM ROAD, ULLOOR JUNCTION, THIRUVANANTHAPURAM-695 011
8 DR.SANDEEP KUMAR BEHRA, MULLOTH AMBADY ENCLAVE, CHITTOOR ROAD, ERNAKULAM, KOCHI-682 011 BY ADVS.
LINDONS C.DAVIS E.U.DHANYA SWATHY A.P.
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM-695 001
2 DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011
3 DIRECTOR, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695 011
4 DIRECTOR, COCHIN CANCER RESEARCH CENTRE, ERNAKULAM GOVERNMENT MEDICAL COLLEGE COMPOUND, HMT COLONY, NORTH KALAMASSERY, ERNAKULAM DISTRICT,PIN-683 503
5 NATIONAL MEDICAL COMMISSION, POCKET -14, SECTOR-8, DWARAKA PHASE-1, NEW DELHI-110 077 BY ADV SHRI.ATHUL SHAJI, SC, REGIONAL CANCER CENTRE (RCC)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2022, ALONG WITH WP(C).38205/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DEVAN RAMACHANDRAN, J.
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W.P (C) Nos. 6122 and 38205 of 2022 ------------------------------------------------ Dated this the 16th day of December, 2022

JUDGMENT

The petitioners in these two cases - which have been heard together taking into account the similarity of the factual pleadings made and the reliefs sought - are stated to have completed DM/MCH course from the Regional Cancer Centre (RCC). They say that when they joined the course, they executed a bond, undertaking to serve the institution for one year and that they were, at that time, designated as “Senior Residents”. They say that, however, when they completed their course, they ought to have designated as 'Assistant Professors', but that the respondents have refused to do so, taking refuge under the order of the Government dated 21.12.2021 (hereinafter referred to as 'the Government Order') - produced as Ext.P6 in WP(C) No.38205/2022 and as Ext.P12 in WP(C) No.6122/2022 - and contend that this order is improper and untenable in view of the fact that the 'Teachers Eligibility Qualifications in Medical Institutions Regulations, 2022' ('Regulations 2022' for short) had been brought into effect from 14.02.2022.

2. Sri.R.T.Pradeep and Sri.Lindons C.Davis – learned counsel appearing for the petitioners in these cases, submitted that even before “Regulations 2022” had been issued, the earlier one in the year 2019 held the field, which had similar – if not identical – terms. They argued that even the Regulations of 2019 made it mandatory that only a student shall be designated as a “Senior Resident”; while one who completes the course will have to be designated only as an “Assistant Professor”. They argued that, however, this had not been adverted to when the Government Order” was issued. They thus pray that the impugned order be set aside and RCC be directed to designate their clients as “Assistant Professors”, from the date on which they completed their course in the concerned subject.

3. Sri.Athul Shaji – learned Standing Counsel for the RCC, on the other hand, submitted that his client is bound by the “Government Order” and that same was issued, based on certain directions by this Court in an earlier round of litigation. He argued that when the petitioners themselves were aware of this, it was not proper for them to seek re-

designation at this time.

4. Sri.P.G.Pramod – learned Government Pleader, appearing for the official respondents, submitted that, as is luculent from the “Government Order”, the Government had taken a decision that re-designation of the post was impossible and that this was done based on a clarification issued by the Director of Medical Education, in its letter dated 04.12.2021. He added that this is more so because, any such re-designation would be contrary to the norms of the National Medical Commission (earlier called 'Medical Council of India').

5. Sri.P.G.Pramod then added that if this Court is neverthless of the view that the “Government Order” requires to be reconsidered, taking note of the ambit of the applicable and extant Regulations, then it may not be set aside, but an opportunity be given to the Government to reconsider the same.

6. I am afraid that I cannot find favour with the afore submissions of the learned Government Pleader, or that of Sri.Athul Shaji, without further enquiry because, as rightly argued by the petitioners, the “Government Order” was issued without adverting to the impact of the extant Regulations.

7. In fact, the “Government Order” was issued at a time when the earlier Regulations of the year 2019 was in force, in which, it is provided that the post of “Senior Resident” would be attracted to a person who is registered for DM/MCH in the concerned subject; while those who have obtained Post Graduate qualification will have to be designated as “Assistant Professor”.

8. Be that as it may, when “Regulations 2022” was issued, it was made much more explicit that a “Senior Resident” (Super Specialities) can only be a DM/MCH student; but that when they complete the course, such a designation could not be applied to them and will have to be offered that of “Assistant Professor”.

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