IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 764 OF 2022
[AGAINST THE JUDGMENT DATED 22.04.2022 IN WP(C) NO. 2244/2022 OF
HIGH COURT OF KERALA]
APPELLANT/1ST PETITIONER IN W.P:
DR. AMALKUMAR V., LECTURER,
DEPARTMENT OF GENERAL SURGERY, GOVERNMENT MEDICAL COLLEGE,
EAST YAKKARA, KUNNATHURMEDU P.O., PALAKKAD-678013.
BY ADVS. SRI. P. NANDAKUMAR
SMT. AMRUTHA SANJEEV
SMT. SHEMA ELIZABETH SCARIA
RESPONDENTS/RESPONDENTS 7 PETITIONERS 2 & 3 IN W.P.:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF MEDICAL EDUCATION,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.
3 THE DIRECTOR OF HEALTH SERVICES,
PALAYAM - AIRPORT ROAD, NEAR GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM - 695 035.
4 COMMISSIONER FOR ENTRANCE EXAMINATIONS,
HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
5 DR. AFSAL ASSIS, LECTURER IN GENERAL SURGERY,
GOVERNMENT MEDICAL COLLEGE, GANDHI NAGAR, KOTTAYAM - 686 008.
6 DR. GREESHMA SUMANASAN,
LECTURER IN GENERAL MEDICINE, GOVERNMENT MEDICAL COLLEGE,
KALAMASSERY, ERNAKULAM - 683 503.
7 DR. MANOJ ANTONY, LECTURER IN GENERAL SURGERY,
GOVERNMENT MEDICAL COLLEGE, KALAMASSERY, ERNAKULAM - 683 503.
WAs:764, 802, 855, 902 & 929
of 2022 -:2:-
8 DR. FIROS AHAMMED A., AGED 33 YEARS,
S/O. M. ABDUL SALIM, JUNIOR RESIDENT/ LECTURER,
DEPARTMENT OF GENERAL SURGERY, GOVERNMENT MEDICAL COLLEGE,
KALAMASSERY, H.M.T COLONY, KOCHI-683 503,
RESIDING AT SAMEER MANZIL, P.V. NORTH, THAZHAVA P.O.,
KARUNAGAPALLY, KOLLAM - 690 523.
9 THE DIRECTOR,
INSTITUTE OF INTEGRATED MEDICAL SCIENCES
(GOVERNMENT MEDICAL COLLEGE), EAST YAKKARA,
KUNNATHURMEDU P.O., PALAKKAD - 678 013.
10 DR. SARITHA K.M.,
LECTURER, DEPARTMENT OF GENERAL MEDICINE,
GOVERNMENT MEDICAL COLLEGE, EAST YAKKARA,
KUNNATHURMEDU P.O., PALAKKAD-678 013.
11 DR. NAYANA SUKUMAR,
LECTURER, DEPARTMENT OF OBSTETRICS AND GYNAECOLOGY,
GOVERNMENT MEDICAL COLLEGE, EAST YAKKARA,
KUNNATHURMEDU P.O., PALAKKAD - 678 013.
BY ADV. S. MANU, ASGI
BY GOVERNMENT PLEADER SRI. P.G.PRAMOD
BY ADVS. SRI. M.K.CHANDRA MOHANDAS
SRI. SHAKTHI PRAKASH
SRI. HARIKRISHNAN M.S.
SRI. K.DHRUV KUMAR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH
W.A. NOS. 802/2022 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WAs:764, 802, 855, 902 & 929
of 2022 -:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 802 OF 2022
[AGAINST THE JUDGMENT DATED 22.04.2022 IN WP(C) NO. 2480/2022 OF THE
LEARNED SINGLE JUDGE]
APPELLANT/PETITIONER:
DR. ARUN V.A., AGED 33 YEARS,
S/O. ARAVINDASHAN V.N.,
R/O. VENGASSERY HOUSE, NO. 38/11, PALIYEKKARA JUNCTION,
NEAR TOLL PLAZA, CHITTISSERY P.O, THRISSUR, PIN-680 301,
PRESENTLY WORKING AS LECTURER, DEPARTMENT OF ORTHOPAEDICS,
GOVT. MEDICAL COLLEGE, PALAKKAD.
BY ADVS. SRI. VARUN C.VIJAY
SMT. DIVYA CHANDRAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.
2 THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM, PIN-695 011, KERALA.
3 POSTGRADUATE COURSE SELECTION COMMITTEE,
REPRESENTED THROUGH ITS CHAIRMAN, SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.
4 SCHEDULED CASTES, SCHEDULED TRIBES,
BACKWARD CLASSES WELFARE AND GA DEPARTMENT,
REPRESENTED THROUGH ITS PRINCIPAL SECRETARY,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.
WAs:764, 802, 855, 902 & 929
of 2022 -:4:-
5 GOVERNMENT MEDICAL COLLEGE, PALAKKAD
(ALSO KNOWN AS INSTITUTE OF INTEGRATED MEDICAL SCIENCE ,
PALAKKAD), REPRESENTED THROUGH ITS DIRECTOR.
6 COMMISSIONER OF ENTRANCE EXAMINATIONS,
HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM-695 001.
7 NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR 8,
DWARAKA PHASE 1, NEW DELHI-110 077.
8 POST GRADUATE MEDICAL EDUCATION BOARD OF NATIONAL MEDICAL
COMMISSION, REPRESENTED BY ITS PRESIDENT, POCKET-14, SECTOR-8,
DWARAKA PHASE-1,NEW DELHI-110077.
9 UNION OF INDIA,
REPRESENTED BY ITS DIRECTOR GENERAL OF HEALTH SERVICES,
THE DIRECTORATE GENERAL OF HEALTH SERVICES (DGHS),
ROOM NO. 446-A NIRMAN BHAWAN, RAJPATH AREA,
CENTRAL SECRETARIAT, NEW DELHI, DELHI-110 001.
BY ADV. SRI. JAISHANKAR V. NAIR, CGC
BY ADV. S. MANU, ASGI
BY GOVERNMENT PLEADER SRI. P.G.PRAMOD
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH
W.A. NO.764/2022 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WAs:764, 802, 855, 902 & 929
of 2022 -:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 855 OF 2022
[AGAINST THE JUDGMENT DATED 22.04.2022 IN WP(C) NO. 2043/2022 OF THE
HIGH COURT OF KERALA]
APPELLANTS/PETITIONERS IN THE WRIT PETITION:
1 DR. ANIKUTTAN W.H., AGED 33 YEARS
S/O. WILSON S., KOVILUVILA VEEDU, PULLAMALA LANE,
AMARAVILA P.O., THIRUVANANTHAPURAM -695 122.
2 DR. KIRAN KUMAR, AGED 34 YEARS
S/O. KUMARAN K., AISWARYA, CHERUTHARA, PUDHIYAKAM P.O.,
PALAKKAD- 678 545.
BY ADVS. SRI. GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI. A.R.DILEEP
SRI. P.J.JOE PAUL
SRI. MANU SRINATH
SRI. RAJAN G. GEORGE
SRI. NIMESH THOMAS
RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.
2 THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM, PIN-695 011, KERALA.
3 POSTGRADUATE COURSE SELECTION COMMITTEE,
REPRESENTED THROUGH ITS CHAIRMAN- SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
TRIVANDRUM - 695 001.
WAs:764, 802, 855, 902 & 929
of 2022 -:6:-
4 SCHEDULED CASTES, SCHEDULED TRIBES, BACKWARD CLASSES,
WELFARE AND GA DEPARTMENT,
REPRESENTED THROUGH ITS PRINCIPAL SECRETARY,
GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.
5 GOVERNMENT MEDICAL COLLEGE,
PALAKKAD (ALSO KNOWN AS INSTITUTE OF INTEGRATED MEDICAL SCIENCE,
PALAKKAD), REPRESENTED THROUGH ITS DIRECTOR,
GOVERNMENT MEDICAL COLLEGE, PALAKKAD, EAST YAKKARA,
KUNNATHURMEDU P.O., PALAKKAD - 678 013.
6 COMMISSIONER OF ENTRANCE EXAMINATIONS,
HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM - 695 001.
7 NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS SECRETARY, POCKET-14, SECTOR - 8,
DWARKA PHASE -1, NEW DELHI - 110 077.
8 POST GRADUATE MEDICAL EDUCATION BOARD
OF NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS PRESIDENT, POCKET-14, SECTOR - 8,
DWARKA PHASE -1, NEW DELHI - 110 077.
9 UNION OF INDIA
REPRESENTED BY ITS DIRECTOR GENERAL OF HEALTH SERVICES,
THE DIRECTORATE GENERAL OF HEALTH SERVICES [DGHS],
ROOM NO. 446-A NIRMAN BHAWAN, RAJPATH AREA,
CENTRAL SECRETARIAT, NEW DELHI, DELHI-110001.
10 DR. FIROZ AHAMED A., AGED 33 YEARS
S/O. M. ABDUL SALIM, JUNIOR RESIDENT/ LECTURER,
DEPARTMENT OF GENERAL SURGERY,
GOVERNMENT MEDICAL COLLEGE, KALAMASSERY, HMT COLLEGE,
KOCHI- 683503, RESIDING AT SAMEER MANZIL,
PV NORTH, THAZHAVA PO, KARUNAGAPPALLY,
KOLLAM DISTRICT-690523.
BY ADV. SRI. JAISHANKAR V. NAIR, CGC
BY ADV. S. MANU, ASGI
BY GOVERNMENT PLEADER SRI. P.G.PRAMOD
BY ADV. SRI. S. SUJIN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH
W.A. NO. 764/2022 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WAs:764, 802, 855, 902 & 929
of 2022 -:7:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 902 OF 2022
[AGAINST THE JUDGMENT IN WP(C) NO.6451/2022 DATED 22.04.2022 OF HIGH
COURT OF KERALA]
APPELLANTS/PETITIONERS IN THE WRIT PETITION:
1 DR. JYOTHISH E., AGED 33 YEARS
S/O. SUBRAMANIAN, MOOTHEDATHU HOUSE,
MORAYUR, MALAPPURAM, KERALA- 673642.
2 DR. NANDAKUMAR R., AGED 33 YEARS
S/O. C. RAJAN, "11/265", NANDANAM, VELLOLI 1ST LANE,
PUTHUR, PIN-678001, KERALA.
BY ADVS. SRI. GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI. MANU SRINATH
SRI. RAJAN G. GEORGE
SRI. NIMESH THOMAS
RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.
2 THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM, PIN - 695 011, KERALA.
3 POSTGRADUATE COURSE SELECTION COMMITTEE,
REPRESENTED THROUGH ITS CHAIRMAN- SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
TRIVANDRUM - 695001.
4 SCHEDULED CASTES, SCHEDULED TRIBES, BACKWARD CLASSES WELFARE
AND GA DEPARTMENT, REPRESENTED THROUGH ITS PRINCIPAL SECRETARY,
GOVERNMENT SECRETARIAT, TRIVANDRUM- 695 001.
WAs:764, 802, 855, 902 & 929
of 2022 -:8:-
5 GOVERNMENT MEDICAL COLLEGE, PALAKKAD
(ALSO KNOWN AS INSTITUTE OF INTEGRATED
MEDICAL SCIENCE, PALAKKAD), REPRESENTED THROUGH ITS DIRECTOR,
GOVERNMENT MEDICAL COLLEGE, PALAKKAD, EAST YAKKARA,
KUNNATHURMEDU P.O., PALAKKAD - 678 013.
6 COMMISSIONER OF ENTRANCE EXAMINATIONS,
HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM - 695 001.
7 NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS SECRETARY, POCKET- 14, SECTOR - 8,
DWARKA PHASE -1, NEW DELHI - 110 077.
8 NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES (NBEMS),
MEDICAL ENCLAVE, ANSARI NAGAR, RING ROAD, NEW DELHI - 110 029
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
9 UNION OF INDIA,
REPRESENTED BY ITS DIRECTOR GENERAL OF HEALTH SERVICES,
THE DIRECTORATE GENERAL OF HEALTH SERVICES [DGHS],
ROOM NO. 446-A NIRMAN BHAWAN, RAJPATH AREA, CENTRAL SECRETARIAT,
NEW DELHI, DELHI - 110 001.
10 DR. GREESHMA. SUMANASAN,
AGED 34 YEARS, D/O. SUMANASAN, RESIDENT VILAYIL VEEDU,
PANAYARA P.O., CHEMMANUTHY, PARAYARA P.O.,
THIRUVANANTHAPURAM - 695 145.
11 DR. BIPIN P. PALLATH, AGED 38 YEARS,
S/O. BHARADWAJ PALLATH, BAAG, CHEMMAD,
THIRURANGADI, MALAPPURAM- 676 306.
BY ADV. SRI. S. MANU, ASGI
BY GOVERNMENT PLEADER SRI. P. G. PRAMOD
BY ADV. SRI. T. SANJAY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH
W.A.NO.802/2022 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WAs:764, 802, 855, 902 & 929
of 2022 -:9:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 929 OF 2022
[AGAINST THE JUDGMENT DATED 22.04.2022 IN WP(C) NO..2043/2022 OF
HIGH COURT OF KERALA]
APPELLANT/THIRD PARTY TO THE WRIT PETITION:
DR.BAIJU KISHOR B.S.,
AGED 31 YEARS, S/O. BALACHANDRAN K.,
HARISREE, PRRA-54, PUTHALAM TEMPLE ROAD,
N. KALAMASSERY P.O., ERNAKULAM-683 104.
BY ADV. SMT. SHERIN EDISON
RESPONDENTS/RESPONDENTS AND PETITIONERS IN THE WRIT PETITION:
1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.
2. THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM, PIN-695 011, KERALA.
3. POSTGRADUATE COURSE SELECTION COMMITTEE,
REPRESENTED THROUGH ITS CHAIRMAN-SECRERTARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.
4. SCHEDULED CASTES, SCHEDULED TRIBES, BACKWARD CLASSES WELFARE
AND GA DEPARTMENT, REPRESENTED THROUGH ITS PRINCIPAL SECRETARY,
GOVERNMENT SECRETARIAT, TRIVANDRUM- 695 001.
5. GOVERNMENT MEDICAL COLLEGE, PALAKKAD,
(ALSO KNOWN AS INSTITUTE OF INTEGRATED
MEDICAL SCIENCE, PALAKKAD), REPRESENTED THROUGH ITS DIRECTOR,
GOVERNMENT MEDICAL COLLEGE, PALAKKAD, EAST YAKKARA,
KUNNATHURMEDU P.O., PALAKKAD - 678 013.
WAs:764, 802, 855, 902 & 929
of 2022 -:10:-
6. COMMISSIONER OF ENTRANCE EXAMINATIONS,
HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM - 695 001.
7. NATIONAL MEDICAL COMMISSION,
REPRESENTED BY ITS SECRETARY, POCKET- 14, SECTOR - 8,
DWARKA PHASE -1, NEW DELHI - 110 077.
8. POSTGRADUATE COURSE SELECTION COMMITTEE,
REPRESENTED THROUGH ITS CHAIRMAN- SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
TRIVANDRUM - 695001.
9. UNION OF INDIA
REPRESENTED BY ITS DIRECTOR GENERAL OF HEALTH SERVICES,
THE DIRECTORATE GENERAL OF HEALTH SERVICES [DGHS],
ROOM NO. 446-A NIRMAN BHAWAN, RAJPATH AREA, CENTRAL SECRETARIAT,
NEW DELHI, DELHI - 110 001.
10. DR. FIROZ AHAMED A., AGED 33 YEARS, W/O. M. ABDUL SALIM,
JUNIOR RESIDENT/LECTURER, DEPARTMENT OF GENERAL SURGERY,
GOVERNMENT MEDICAL COLLEGE, KALAMASSERY, HMT COLLEGE,
KOCHI-683503, RESIDING AT SAMEERMANZIL, PV NORTH, THAZHAVA P.O.,
KARUNAGAPPALLY, KOLLAM DISTRICT-690523.
11. DR. ANIKUTTAN W.H., AGED 33 YEARS,
S/O. WILSON S., KOVILUVILA VEEDU, PULLAMALA LANE,
AMARAVILA P.O., THIRUVANANTHAPURAM-695 122.
12. DR. KIRAN KUMAR, AGED 34 YEARS,
S/O. KUMARAN K., AISWARYA, CHERUTHARA,
PUDHIYAKAM P.O.,PALAKKAD-678 545.
BY ADV. SRI. S. MANU, ASGI
BY GOVERNMENT PLEADER SRI. P. G. PRAMOD
SRI. S. SUJIN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH
W.A.NO.802/2022 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WAs:764, 802, 855, 902 & 929
of 2022 -:11:-
JUDGMENT
Shaji. P. Chaly, J Instant intra court appeals are filed by the writ petitioners, and a third party to W.P.(C) No.2043/2022, challenging the common judgment in W.P.(C) Nos.2043/2022, 2244/2022, 2480/2022, and 6451/2022 dated 22.04.2022, by which, the learned single Judge dismissed the writ petitions holding that since the Institute of Integrated Medical Sciences (Government Medical College, Palakkad) is a society constituted as per the Travancore-Cochin, Literary, Scientific and Charitable Societies Registration Act, 1955, it is not an instrumentality or agency of the Government, and hence, writ petitioners do not satisfy the requirements of Medical Officers, as prescribed under the Act, 2008 and hence, are not entitled to in-service quota reservations.
2. Learned single Judge also held in the impugned judgment that the appellants could not establish that the Institute of Integrated Medical Sciences (IIMS) is an instrumentality of State, providing sufficient materials to show that it satisfies the test prescribed by the Hon'ble Supreme Court in Ramana Dayaram Shetty v. International Airport WAs:764, 802, 855, 902 & 929 of 2022 -:12:- Authority of India and Ors. [AIR 1979 SC 1628] and Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. [AIR 1981 SC 487].
3. Appellants are Lecturers of Government Medical College, Palakkad. According to them, they are qualified Lecturers working in various departments of the instant Medical College, entitled to secure admission to Postgraduate courses, in the quota earmarked for in- service candidates as per the Kerala Medical Officers' Admission to Postgraduate Courses under Service Quota Act, 2008, and the prospectus issued for the purpose by the State Government.
4. The writ petitions are filed mainly challenging the Prospectus issued by the Government of Kerala for Admission to Medical Post Graduate Degree Courses 2021-2022, to the extent it excludes the Lecturers of Medical College, Palakkad, for admission to Medical Postgraduate courses in Government Medical Colleges, in the State, and Regional Cancer Centre, Thiruvananthapuram, under in-service quota, and in one of the writ petitions, provisions of Act, 2008 are challenged, in so far as it excludes the Lecturers of the instant Medical College.
5. Reliefs sought for by the petitioners in the respective writ petitions are almost similar and they are reproduced hereunder: WAs:764, 802, 855, 902 & 929 of 2022 -:13:- A. To call for the records leading to GO(MS) No.18/2022/ H&FWD dated 15.01.2022 issued by the Joint Secretary to Government, Department of Health and Family Welfare, State of Kerala, Thiruvananthapuram, approving the impugned prospectus and quash the same to the extent it excludes the Lecturers of Government Medical College, Palakkad for admission to Medical Post Graduate Courses in Government Medical Colleges in the State and RCC, Thiruvananthapuram, under the in-service quota by issuance of a writ of certiorari.
B. To declare that petitioners who are Lecturers of Government Medical College, Palakkad are also entitled to apply for admission to Medical Post Graduate Courses in Government Medical Colleges in the State and RCC, Thiruvananthapuram, pursuant to the order dated 15.01.2022 under in-service quota.
C. To declare that the exclusion of Lecturers of Government Medical College, Palakkad from the purview of the impugned prospectus is highly illegal, arbitrary and violative of Article 14 of the Constitution of India. D. To issue a writ of mandamus directing the respondents to accept and process applications submitted by the petitioners for admission to the Medical Post Graduate Courses in Government Medical College in the State and RCC, Thiruvananthapuram for the year 2021-22. E. To declare that exclusion of lecturers in Government Medical College, Palakkad under the provisions of Kerala Medical Officers' Admission to Post Graduate Courses under Service Quota Act, 2008 and the rules made thereunder is violative of Articles 14 and 16 of the Constitution of India and that the petitioners are eligible to be treated atleast on a par with the lecturers of Medical Education service, till suitable amendments are made in the Act and rules.
6. Apart from the above reliefs, the petitioners in W.P.(C) No.2480/ 2022 leading to W.A. No.802/2022 sought for the following : WAs:764, 802, 855, 902 & 929 of 2022 -:14:- A. Declare that Rule 4(ii) of the Kerala Medical Officers' Admission to Postgraduate Courses under Service Quota Rules, 2009, as well as Clauses 6.6.11 to 6.6.19 of the impugned prospectus are illegal and unconstitutional to the extent they bar and restrict consideration of medical officers of Government Medical College, Palakkad for selection under in-service quota;
B. Declare that the Medical officers of Government Medical College, Palakkad, like petitioners are entitled to be considered for selection to in-service quota either as a separate sub-quota or under Medical Education Service Quota (MESQ); and C. Issue a writ of mandamus or any other appropriate writ, direction or order, directing the Postgraduate Course Selection Committee, represented through its Chairman - Secretary to Government, Health and Family Welfare Department, Trivandrum and the Commissioner of Entrance Examinations, Trivandrum, respondents 4 and 6, to accept and process the application submitted by the petitioner to permit him to attend counselling and admission process at 10% of the total seats earmarked for in-service quota for admission to PG Medical Courses in Kerala under the State quota and to grant necessary PG admissions to the petitioners, if they are otherwise qualified under merit.
7. Brief facts for disposal of the writ appeals are that; the State Government as per GO(Ms) No.72/2012/SCSTDD dated 26.05.2012 decided to establish a Medical College under the Scheduled Caste and Scheduled Tribe Department. Later, a separate society viz., Institute of Integrated Medical Sciences, Palakkad, was registered for the said purpose. The College started functioning during the Academic Year WAs:764, 802, 855, 902 & 929 of 2022 -:15:- 2014-2015, after securing permission from the Medical Council of India and is affiliated to Kerala University of Health Sciences (KUHS).
8. The Government Medical College, Palakkad is established for the development of Scheduled Caste and Schedule Tribe communities and 72% of the admissions are given to SC/ST in the College. According to the appellants, the most number of SC and ST members in Kerala are found in the district of Palakkad, and therefore, it was decided to establish a medical college in Palakkad, where there is no other college.
9. The Governing Body of said society consists,- (i) Hon'ble Chief Minister of Kerala - Chairman; (ii) Hon'ble Minister for Scheduled Castes Development Department, Kerala - Vice Chairman; (iii) Secretary, Department of Scheduled Castes Development Department, Kerala - Member/Alternate Vice Chairman; (iv) Secretary, Department of Finance, Kerala - Member; (v) Secretary, Department of Health, Kerala - Member; (vi) an eminent Medical Scientist - Member; (vii) one nominee of the Ministry of Health, Government of Kerala - Member; (viii) Superintendent, Government Medical College, Palakkad - Member; (ix) Principal, Government Medical College, Palakkad - Member; (x) Director of Medical Education, Kerala - Member; (xi) Director of Scheduled Castes WAs:764, 802, 855, 902 & 929 of 2022 -:16:- Development Department - Member; (xii) Principal, Nursing College, Palakkad - Member; and (xiii) Director, Institute of Integrated Medical Sciences, Palakkad - Convener.
10. Therefore, according to the appellants, both the Health Secretary and Director of Medical Education are members of the Society, viz., Institute of Integrated Medical Sciences (IIMS), Palakkad, and it is under the absolute control of the State Government.
11. Appellants have narrated their qualifications in the writ petitions as well as appeals. However, since the qualifications of the appellants to secure admission to postgraduate courses are not in dispute, they are not reproduced hereunder. They are all qualified in the NEET examination. Anyhow, on the basis of the requests made by the appellants and others, an application was submitted to the State Government- 1st respondent, on 30.09.2020, for permitting the lecturers of Medical College, Palakkad, to avail the in-service quota for admission to Medical PG course. Thereafter, the Director of Medical Education has sought for the details of in-service candidates from the Principal, Government Medical College, Palakkad, vide Exhibit-P11 letter dated 31.10.2021 produced along with the documents in WA No.764/2022. WAs:764, 802, 855, 902 & 929 of 2022 -:17:-
12. Pursuant to the said letter, the Principal, Medical College, Palakkad, issued an office order dated 02.11.2021 (Exhibit-P12), directing the lecturers desirous of applying under in-service quota to submit applications. On the basis of the said proceedings, the Principal of Government Medical College, Palakkad, has forwarded a list of lecturers dated 05.11.2021 produced as Ext-P13 along with the documents in W.A. No.764/2022, who are NEET qualified candidates, including the name of appellants to the Director of Medical Education, Thiruvananthapuram.
13. It is further submitted that the State Government has also directed the Director of Medical Education, to submit a report regarding the claim of lecturers in Government Medical College, Palakkad for seats under service quota as per letter dated 05.11.2021 produced as Exhibit- P14 in the aforesaid writ petition. However, no action was taken by the respondents in the matter. While so, the State Government issued the Prospectus for Admission to PG Medical Courses in Government Medical Colleges in the State and RCC, Trivandrum, for the Academic Session 2021-2022 vide GO(Ms) No.18/2022/H&FWD dated 15.01.2022.
14. The crux of the issue raised by the appellants is that as per the Prospectus, selection and allotment of candidates in the State quota of WAs:764, 802, 855, 902 & 929 of 2022 -:18:- 416 seats at eight medical colleges and 8 seats at Regional Cancer Centre, Thiruvananthapuram, in PG Medical Course, will be made from the ranked list prepared by the Commissioner for Entrance Examinations. Out of the total number of seats available under the State quota, 10% seats are reserved for in- service candidates.
15. Further, as per the Prospectus, reservation of seats have been set apart for service quota candidates under three categories, viz., Medical Education Service Quota; Health Service Quota; and Insurance Medical Service Quota; in the ratio of 45:45:10. The in-service quota candidates shall apply online and upload the required documents. Thereafter, printout of the documents, including uploaded documents, along with a declaration and service details, should be forwarded to the head of the concerned department. According to the appellants, they have already submitted the online applications and forwarded necessary documents to the Commissioner for Entrance Examinations, Thiruvananthapuram, who submitted the same to the Director of Medical Education, 2nd respondent, for further processes.
16. Anyhow, the appellants later realized that though they are working in a Government Medical College, they will not be allotted any WAs:764, 802, 855, 902 & 929 of 2022 -:19:- seats in the service quota, as they will not come under the three categories mentioned in the Prospectus such as, Medical Education Service Quota; Health Service Quota; and Insurance Medical Service Quota. According to the appellants, Government Medical College, Palakkad, directly comes under the Scheduled Caste and Scheduled Tribe Development Department, Government of Kerala, and not under the Director of Medical Education, Director of Health Services or Director of Insurance Medical Services.
17. Aggrieved by the exclusion of Government Medical College, Palakkad, from the categories mentioned in paragraphs 6.6.11 to 6.6.19 of the Prospectus, appellants and others have filed the respective writ petitions for the reliefs stated supra.
18. The State Government has filed a statement producing Annexure-R1(a) Government order dated 20.01.2022 by which, the request of a Lecturer in the college in question, for inclusion in the service quota, was rejected. According to the appellants, no reason was mentioned in the said order to reject the contentions of the said Lecturer, except that the subject college in not included in the Kerala Medical Officers Admission to Post Graduate Courses under Service Quota Act, WAs:764, 802, 855, 902 & 929 of 2022 -:20:- 2008 (for short, the Act, 2008) and the rules framed thereunder. Therefore, the appellant in W.A. No.764/2022 has amended the writ petition by challenging the Act, 2008 and rules thereto, which according to the Government, hindered the inclusion of medical officers working in Government Medical College, Palakkad, under in-service quota for admission to PG courses.
19. At the time of admission of the writ petitions, though interim relief to provisionally accept and process applications submitted by the appellants for admission to the Medical Postgraduate Courses in Government Medical Colleges in the State and RCC, Thiruvananthapuram for the year 2021-2022 was sought, the same was declined by the learned single Judge, by interim order dated 27.01.2022. Against the said interim order, appellants and others have filed W.A. No.158/2022 and other connected appeals. The appeals were heard together and disposed of by judgment dated 31.01.2022, directing the Director of Medical Education, the convenor of selection process, to prepare two lists of reservation of in-service candidates, i.e., list No.1, by including the Medical Education Service Quota; Health Service Quota; and Insurance Medical Service Quota; and list No.2, by including the list of 16 NEET WAs:764, 802, 855, 902 & 929 of 2022 -:21:- candidates from the Government Medical College, Palakkad, and also under the Director of Medical Education Service, on the basis of the criteria along with the in-service category, as prescribed in the Prospectus in question.
20. Later, the State Government filed a counter affidavit in W.P.(C) No.2043/2022 and adopted the same in all the other writ petitions. It was contended in the counter affidavit that the Prospectus do not contain the name of Government Medical College, Palakkad, and therefore, the Lecturers of Government Medical College, Palakkad cannot be included in the in-service category.
21. According to the appellants, the duties of Lecturers in the Government Medical College, Palakkad are the same as that of all the other Lecturers working in various medical colleges, under the direct control of the Director of Medical Education; they have to conduct outpatient, ward, and Covid duties, apart from taking bedside classes for MBBS students; that the Government Medical College, Palakkad is also a referral institution for the Tribal Super Specialty Hospital, Palakkad, and the medical officers working in Medical College, Palakkad are also deputed to the Tribal Super Specialty Hospital, Palakkad, for specialized WAs:764, 802, 855, 902 & 929 of 2022 -:22:- service, and hence, Lecturers in the Government Medical College, Palakkad are undertaking more duties than the Lecturers working in other medical colleges, in the State. Therefore, according to the appellants, in the facts and circumstances, denying them a seat under the service quota, will be denying the SC/ST students of the college to get more advanced medical education.
22. Learned single Judge in the impugned judgment has declined the reliefs sought for by the writ petitioners holding that IIMS (Government Medical College, Palakkad) cannot be considered to be an instrumentality or agency of the Government and, therefore, the appellants do not satisfy the requirements of medical officers, as prescribed under the Act, 2008, and hence, are not entitled to in-service quota reservations.
23. In the counter affidavit filed by the State Government, the prime contention raised is that in the present context, the Kerala Medical Officers Admission to Post Graduate Courses under Service Quota Act, 2008 and the rules framed thereunder, viz., the Kerala Medical officers Admission to Post Graduate Courses under Service quota Rules, 2009, are the relevant law. That apart, it was contended that as per the WAs:764, 802, 855, 902 & 929 of 2022 -:23:- decision of the Hon'ble Supreme Court in State of U.P. and Ors. v. Dinesh Singh Chauhan reported in (2016) 9 SCC 749, the State Governments do not have right/authority to form an in-service quota for PG Medical Courses, as it is in violation of the extant regulations issued by the erstwhile Medical Council of India.
24. Anyhow, later, the authority of the State Government to bring in a service quota or to form a separate source of admission for PG Medical Courses, was examined by the Five-Judges Bench of the Hon'ble Apex Court in Tamil Nadu Medical Officers Association and Ors. v. Union of India (UOI) and Ors. [(2021) 6SCC 568], wherein it was held that the authority of the State Government to form a service quota for PG Medical Courses, finding that Regulation 9 of MCI Regulations, 2000 cannot tinker with the legislative competence and authority of the concerned States to make reservation and / or make special provision for providing a separate source of entry for in-service candidates seeking admission to Postgraduate Degree Course and, therefore, the concerned States to be within their authority and / or legislative competence to provide for a separate entry for in-service candidates seeking admission to Postgraduate degree / diploma courses, in exercise of powers under WAs:764, 802, 855, 902 & 929 of 2022 -:24:- Entry 25, List III of the Constitution of India. Therefore, according to the State Government, it is from the current academic year onwards, it has been decided to provide a service quota for candidates, as prescribed under the Act, 2008 and Rules, 2009 framed thereunder.
25. Sum and substance of the contentions raised by the respondents in the counter affidavit is that in the Prospectus issued for the purpose, Palakkad Medical College is not enlisted under Medical Education Service Quota and no seats are earmarked for Palakkad Medical College, and therefore, the claim raised by the appellants cannot be sustained under law.
26. Mr. P. Nandakumar, learned counsel for the appellants, submitted that though Government Medical College, Palakkad does not come under the supervision of the Director of Medical Education, Director of Health Services or Director of Insurance Medical Services, it comes directly under the control of SC/ST Development Department of Government of Kerala. The Teaching and Non Teaching Staffs of Government Medical College, Palakkad are considered to be Government Servants in all respects, and therefore, there is no reason to exclude the lecturers of Government Medical College, Palakkad, from the purview of WAs:764, 802, 855, 902 & 929 of 2022 -:25:- in-service quota mentioned in the prospectus. In such circumstances, the exclusion of the lecturers of Government Medical College from the in- service quota mentioned in the prospectus is liable to be declared as bad.
27. It is submitted that the appellants are otherwise fully qualified for admission to Medical Postgraduate Degree Courses in Government Medical Colleges in the State and RCC, Thiruvananthapuram, as per the Prospectus, as that of other Lecturers in Medical Education Service Quota, Health Services Quota, and Insurance Medical Service Quota. Therefore, the appellants are also entitled to be considered along with other in- service candidates for admission to Medical Postgraduate Degree Course in Government Medical Colleges in the State and RCC, Thiruvananthapuram. Paras 6.6.11 to 6.6.19 of the Prospectus to the extent they exclude the Lecturers of Government Medical College, Palakkad from the in-service quota for applying for admission to the Medical Postgraduate Courses in Government Medical Colleges in the State and RCC, Thiruvananthapuram, therefore, amount to infraction of the equality clause guaranteed to the appellants under Article 14 of the Constitution of India.
28. Learned counsel for the appellants further submitted that, as WAs:764, 802, 855, 902 & 929 of 2022 -:26:- on the date of issuance of Kerala Medical Officers' Admission to Postgraduate Courses under Service Quota Act, 2008 and the Rules, 2009, Government Medical College, Palakkad was only at its inception stage, and therefore, the said College was not brought under the provisions of the Act. Government Medical College, Palakkad started functioning in the year 2014. But even then, only in-service candidates under the Director of Medical Education, Director of Health Services, and Director of Insurance Medical Services are eligible to apply as per the provisions of the Act and rules. This is a clear discrimination as persons like the appellants, who are working in a Government Medical College, are prevented from making applications for PG Admissions under in- service quota, though they are otherwise qualified in all respects, including NEET.
29. Rule 4(ii) of the Rules states that the applicants should be regular staff under the Health Services Department (HSD)/Medical Education Service (MES)/Insurance Medical Service (IMS)/Municipal Services. The Lecturers of Government Medical College, Palakkad do not belong to either of these services. At the same time, they belong to regular Government service. Therefore, the Lecturers of Government WAs:764, 802, 855, 902 & 929 of 2022 -:27:- Medical College, Palakkad are entitled to a separate quota for admission, as has been done in the case of Insurance Medical Services.
30. He further submitted that for the time being, atleast the appellants should be treated at par with the Lecturers of Medical Education Service. Therefore, there is clear discrimination in the provisions of the said Act and rules, with regard to exclusion of the appellants working in Government Medical College, Palakkad, which is clearly illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
31. Learned counsel further contended that the learned single Judge failed to consider that Government Medical College, Palakkad was established for the welfare of SC/ST communities of the area fully under the direct control of SC/ST Development Department in the Government and it was incumbent on the part of the respondents to see that quality education is imparted in the said College. There cannot be any discrimination with the lecturers working in other medical colleges, in the matter of getting admission to PG Medical Courses under the in- service quota. Since the Act and rules excluding the lecturers of Government Medical College, Palakkad are under challenge in the Writ WAs:764, 802, 855, 902 & 929 of 2022 -:28:- Petitions, the finding of the learned single Judge that since the said College is not included under the Act and rules, the appellants cannot be granted any reliefs is totally unsustainable.
32. It is argued that the learned single Judge lost sight of the fact that this Court in WA No. 151 of 2022 and connected cases has prima facie found that Medical Officers in all the Medical Colleges whether it is under the purview of the Directorate of Health Services/Medical Education/ Insurance Medical Services and the Government Medical College, Palakkad, possess the qualifications prescribed by the Medical Council of India to discharge the same duties and functions. The Medical Officers in these Medical Institutions form a homogeneous class and the difference is only in the controlling authority. Therefore, according to the learned counsel, this Court found that, it is the duty of the Government to satisfy the requirements as regards the rationality, intelligible differentia etc., for treating the in-service candidates from Government Medical College, Palakkad, differently for the purpose of extending reservation in seats and consequently pursuing Postgraduate Education, after passing NEET. Therefore, it is submitted that the Medical Officers in Government Medical College, Palakkad cannot be asked to compete along with the WAs:764, 802, 855, 902 & 929 of 2022 -:29:- regular candidates from open market.
33. Learned counsel for the appellants further contended that it is incumbent on the part of the Director of Medical Education to prepare a composite list of lecturers working under it and in the Government Medical College, Palakkad, on the basis of merit, for the purpose of admission to PG Medical Courses under service quota. The 1 st respondent
- State of Kerala, being the authority to enact laws and to make necessary amendments to rectify the lacuna in the existing enactments, cannot be heard to say that since Government Medical College, Palakkad is not included under the provisions of Kerala Medical Officers Admission to Post Graduate Medical Courses under Service Quota Act, 2008 and the rules framed thereunder, lecturers working under it are not entitled for Post-graduate Admission under Service Quota.
34. Mr. P. Nandakumar, learned counsel for the appellants, further submitted that one of the contentions raised by the Government in the counter affidavit was that, since the prospectus has already been published, without including the lecturers of Government Medical College, Palakkad, under in-service quota for the year 2021, no reliefs can be granted to the appellants. But even now, no decision has been WAs:764, 802, 855, 902 & 929 of 2022 -:30:- taken by the Government to include the lecturers of Government Medical College, Palakkad under in-service quota, in view of the findings of the learned Single Judge in the impugned judgment. Therefore, the official respondents are liable to be directed to include the lecturers of Government Medical College, Palakkad under in-service quota, in the Prospectus for Admission to Medical Post Graduate Degree Courses, 2022-2023.
35. It is further contended that the appellants are entitled to be considered under the in-service quota for admission to DNB, Post MBBS Degree Courses in Kerala under the State quota. It is also submitted that the provisions of the Service Quota Act, 2008 can be and must be construed in a manner, so as to mandatorily consider the medical officers of Government Medical College, Palakkad, for selection under in-service quota. Any other interpretation of the said statute resulting in barring and restricting the consideration of the medical officers of Government Medical College, Palakkad for selection under in-service quota must be held illegal as that would violate the mandate of the Article 14 of the Constitution of India.
36. Learned counsel for the appellants further submitted that the WAs:764, 802, 855, 902 & 929 of 2022 -:31:- provisions of Service Quota Act, 2008 would vitiate the rule of law postulated under the mandate of Article 14 of the Constitution of India, if they are construed in a manner whereby similarly situated medical officers in Health Services Department (HSD)/Medical Education Service (MES)/ Insurance Medical Service (IMS) are granted consideration under in-service quota while medical officers of Government Medical College, Palakkad are denied the same benefit. According to the learned counsel, treating the medical officers of Government Medical College, Palakkad, differently in this regard would constitute discrimination and should be viewed as unreasonable and illegal classification.
37. It is also submitted that since the nature of job and functions exercised by the medical officers of Government Medical College, Palakkad are exactly the same as the functions undertaken by medical officers of all the other Government Medical Colleges, who are entitled to Medical Education Service Quota [MESQ], the appellants, being similarly situated, are also entitled to similar treatment and thus, should be considered for admissions under the Medical Education Service Quota [MESQ] as well. Anything less than that would run foul of the mandate of Article 14 against discrimination and arbitrariness. WAs:764, 802, 855, 902 & 929 of 2022 -:32:-
38. Mr. Varun C. Vijay, learned counsel for the appellant in W.A. No.802/2022, submitted that as per the Act, 2008 and rules framed thereunder, in-service quota seats are allotted only to medical officers working under the Health Services Department, Medical Education Service and Insurance Medical Service. It is pertinent to not that this year also, the appellant herein has appeared for the NEET PG-2022 Examination and secured Rank No.46280 with 372 score out of 800. His roll number is 2266080514. Last year, he secured only Rank No.62581 with score of 351. However, whenever the prospectus and seat matrix are published since 2015, not a single seat for the PG course in Orthopedics is reserved for the DME department. The reason for that, according to the respondents, is, there is no other eligible candidate under service quota for PG seat in Orthopedics under the DME.
39. Mr. Varun C. Vijay further submitted that the in-service quota for PG Courses was reintroduced based on the directions contained in Tamil Nadu Medical Officers Association and Ors. v. Union of India (UOI) reported in (2021) 6 SCC 568, wherein the importance for maintenance of public health is stressed upon saying that right to life includes right to health under Article 21 of the Constitution of India. WAs:764, 802, 855, 902 & 929 of 2022 -:33:-
40. According to the learned counsel, the Hon'ble Supreme Court in the decision referred to above has categorically held that doctors in employment of the States and allied sectors form a separate and distinct class and for the purpose of admission in PG Degree Courses, they can be given a certain element of preference. Hence, the appellant is entitled to get the benefit of the said decision, which is not denied to him.
41. Mr. Varun C. Vijay further submitted that like in the case of Medical Officers under the Health and Family Welfare department, especially under the DME, as they are governed by KSR and KS & SSR, the appellant is also governed by it. The purpose of restoring the in-service quota itself is to encourage the in-service doctors to offer their services and expertise to the State, to meet the requirements of common people. Even if it is assumed though not admitted that the Government Medical College, Palakkad does not fall under the ambit of Article 12 of the Constitution of India, even then it will fall under the category of "in service doctors of allied sector" who also has to be given preference in the matter of reservation for service quota, for admission to PG courses. This, the State Government has not done and for no fault of the appellant, he is denied that opportunity.
WAs:764, 802, 855, 902 & 929 of 2022 -:34:-
42. He also submitted that the Government Medical College, Palakkad, which comes under the SC/ST department and is run by the society as an intermediary, indeed comes under the ambit of Article 12 of the Constitution of India and, therefore, it is an instrumentality of the State. This is because, the entire building is constructed and run by the fund allotted/spent by the Government alone, which fact is admitted by the SC/ST department, Government of Kerala, in the reply dated 21.05.2022.
43. Regarding the monopoly status, as stated earlier, for the entire district of Palakkad, learned counsel for the appellants submitted that this institution alone is there to meet the needs of the proper people including the tribals and rural people. According to him, no other medical college is established in Palakkad by the Government under the Health and Family Welfare Department.
44. Mr. George Varghese Perumpallikuttiyil, learned counsel for the appellants in W.A. Nos.855, 902 & 929 of 2022, also advanced arguments, relying upon the rules framed for the appointment of lecturers and other service conditions. He submitted that the entire service rules applicable to services of the State are made applicable to WAs:764, 802, 855, 902 & 929 of 2022 -:35:- the lecturers of Government Medical College, Palakkad. Merely because it is functioning as a society, that will not take away its characteristics of State under Article 12 of the Constitution of India.
45. Heard learned counsel appearing for the appellants, as well as Mr. Pramod P. G., learned Government Pleader, and perused the material on record.
46. Kerala Medical Officers' Admission to Postgraduate Courses Under Service Quota Act, 2008 is an Act to provide for quota of seats among Medical Officers of the State of Kerala and to have a selection procedure for admission to various Post graduate Courses in the Medical Colleges under the service quota considering their service under the Government and for matters connected therewith or incidental thereto. Government is defined under Section 2(b) of the Act, 2008 to mean Government of Kerala.
47. The word "Medical Officer" is defined under Section 2(d) of the Act, 2008 to mean, a doctor with M.B.B.S. Qualification, who is in service, under the control of a Head of Department, and includes a lecturer or any other doctor, with a different designation as the Government may specify.
WAs:764, 802, 855, 902 & 929 of 2022 -:36:-
48. Section 3 of the Act, 2008 speaks about Selection of Medical Officers for Admission to Postgraduate Courses under the Service Quota and it states that notwithstanding anything contained in the Indian Medical Council Act, 1956 (Central Act 102 of 1956) or any rule or regulation issued thereunder or in any judgment, decree or order of any court or authority, the selection of Medical Officers for admission to Postgraduate Course of study in the State under the service quota shall be made only under the provisions of the Act.
49. The primary question to be considered in these appeals is as to whether the Institute of Integrated Medical Sciences (IIMS), Palakkad, is an instrumentality of the State or not.
50. Paragraphs 6.6.11 to 6.6.19 of the prospectus deal with the eligibility criteria for service quota candidates and they read thus:
"6-6-11. Reservation of Seats for service candidates 10% of State Quota seats are earmarked for Government Service Quota candidates as per G.O. (Ms)No.195/2021/H&FWD dated 30/10/2021. All State Quota seats other than those mentioned in Clause 6 (1 to 10) are earmarked for Service Quota candidates. Seats as shown in Annexure III are set apart for Service quota candidates sponsored by each Department under the following three categories with the ratio 45:45:10:: [MESQ : HSQ : IMSQ].
Medical Education Service Quota - (MESQ).
Health Service Quota - (HSQ) WAs:764, 802, 855, 902 & 929 of 2022 -:37:- Insurance Medical Service Quota - (IMSQ).
6-6-12 Eligibility for Service Quota a. The eligibility criteria for the service quota are the same as laid down in Clause 4. The applicants under Service Quota should have successfully completed their probation in the respective cadre. Other cases will not be entertained on any account. Provisional service (under MES/DHS/IMS) if any, before the regular appointment will not be considered. b. The total service will be reckoned as on the date of notification for inviting application by CEE for admission to the courses. Unauthorised absence or absence due to Leave without Allowance (including leave on medical ground) and the deputation periods of the candidates will not be counted for the purpose of calculating the minimum service and for the seniority. However, the period of deputation of candidates of service quota candidates to autonomous institutions/ projects/ societies/ other agencies under the administrative control of their parent department will be counted as eligible service under State Service Quota. If there is a tie in their actual physical service, the PSC seniority will be the deciding criterion.
c. Preparation of Seniority list under Health Service Quota (HSQ):-A single seniority list for candidates under Health Service Quota will be prepared by the DHS. Weightage for Service, Rural and Difficult Rural Service will be given as follows, subject to a maximum of 30% of the marks obtained: Service weightage :
Service weightage in the marks will be given as an incentive at the rate of 1% of marks obtained, for each year in service. Rural Service: Service weightage in the marks will be given as an incentive at the rate of 2% of marks obtained, for each year in service in Rural areas upto a maximum of 30% of the marks obtained. Doctors working in approved Casualty Units in the Government Hospitals are also eligible for claiming Rural Service Quota.
WAs:764, 802, 855, 902 & 929 of 2022 -:38:- Difficult Rural Service: In determining the merit in the Entrance test for PG admission, weightage in the marks will be given as an incentive at the rate of 5% of marks obtained for each year in service in Difficult Rural area unto a maximum of 30 % of the marks obtained.
It is clarified that the service weightage added up from all areas of service is capped at 30% of the marks obtained by the candidate in the qualifying examination. The list of Government Allopathic Medical institutions designated as Rural stations in Kerala is as mentioned in the Standardised list of Government Allopathic Medical Institutions-2013 prepared by Health Information Cell (DHS) and approved vide GO(ms)No.443/2013/H&FWD dated 16.11.2013.
The list of Government Allopathic Medical Institutions in Difficult Rural Areas in Kerala is as mentioned in G.O(MS)No.55/2014/H&FWD dated 15.02.2014 (Annexure XI).
d. Lecturers who have Post Graduate Degree/D.N.B in the Specialty corresponding to the branch in which they are working will not be eligible for admission under Service quota.
6-6-13 Application & Selection under Service Quota. The service candidates should apply as stipulated in Clause 7 of this Prospectus. The Commissioner for Entrance Examinations will provide the list of qualified candidates in the NEET PG -2021 to the controlling officers through the Director of Medical Education Kerala. The controlling officer/Head of Department (DME/DHS/DIMS) concerned will verify the application and documents, prepare a provisional rank list according to the merit and service of the candidates and publish it providing sufficient time for submitting complaints/objections. The appeals/complaints, if any, against the provisional rank list should reach the Head of the Department within the time limit prescribed. Objections through e-mail will also be considered. The DME will then place the Rank List before the Post graduate WAs:764, 802, 855, 902 & 929 of 2022 -:39:- Selection Committee for scrutiny and selection of candidates. The finalized Rank List along with the individual applications will be forwarded to the Commissioner for Entrance Examinations, through the Director of Medical Education (convener of Post Graduate Selection Committee) for the Centralised Allotment Process.
The PG selection committee has power to deny admission in respect of the service candidates who are facing disciplinary action. Service candidates who are facing disciplinary action involving major penalty shall not be recommended by the HOD concerned. The declaration relating to this may also be attached along with the application. However this will be subject to review and approval of the Government. Service quota for Degree courses can be claimed only once during the period of whole service in one department viz. MES/DHS/IMS.
Note: For details of allotment under Service quota, refer Clause 10 of the Prospectus.
6-6-14 Declaration for Service Quota Candidates: Service candidates who have selected/undergone PG Degree course under Service quota, earlier, will not be eligible for selection under service quota for a second time. However a candidate who has obtained PG Diploma under Service Quota is eligible to apply for the PG Degree Course in the same speciality and is entitled to get the Service Quota benefit for that degree course in the same speciality alone. A declaration to the effect that he/she has not selected/undergone PG Degree course under the service quota should be furnished by the candidate along with the printout of the application. Applications devoid of such declaration will be rejected. (See Annexure XI) 6-6-15 It is mandatory for the service quota candidates to join the course to which they are selected and if they do not join the course or discontinue the course after joining, they will not be considered for selection to P.G. Course under Service Quota in future.
WAs:764, 802, 855, 902 & 929 of 2022 -:40:- 6-6-16 Medical Education Service Quota (MESQ) The seats as specified in Annexure - III are reserved for regular Lecturers without Post Graduation in Medical Education Service in the State in the corresponding specialty only. Teachers who have undergone P.G. Course under Tutor/Lecturer trainee scheme once will not be eligible for selection under Service quota for a second time. Lecturers who already have a Post Graduate Degree [MD/MS/Dip.N.B] necessary for career advancement in the concerned specialty will not be eligible for admission under service quota. Lecturers in a particular subject/specialty shall be eligible to be considered for the P.G. Course in the same subject only, except the Lecturers in the following subjects who will be considered for the P.G. Course as detailed below:
Sl. Category Degree Course for
No. which eligible to apply
1. Lecturer in Neurology M.D. General Medicine
2. Lecturer in Gastroenterology M.D. General Medicine
3. Lecturer in Cardiology M.D. General Medicine
4. Lecturer in Nephrology M.D. General Medicine
5. Lecturer in Infectious Diseases M.D. General Medicine
6. Lecturer in Endocrinology M.D. General Medicine
7. Lecturer in Haematology M.D. General Medicine
8. Lecturer in Neurosurgery M.S. General Surgery
9. Lecturer in Paediatric Surgery M.S. General Surgery
10. Lecturer in Plastic Surgery M.S. General Surgery
11. Lecturer in Genito Urinary M.S. General Surgery Surgery
12. Lecturer in Thoracic Surgery M.S. General Surgery
13. Lecturer in Traumatic Surgery M.S. General Surgery
14. Lecturer in Surgical M.S. General Surgery Gastroenterology
15. Lecturer in Nuclear Medicine M.D Radiotherapy Seats earmarked for Service Quota (MES/DHS/IMS) will not be subjected to further changes and no transfers will be allowed under any circumstances for those who have occupied the respective seats after finalizing their options. Transfers will be considered only through the scheduled allotment process done by CEE before the closing date of admission.
WAs:764, 802, 855, 902 & 929 of 2022 -:41:- No transfers are allowed between General Merit candidate and Service Quota candidate even through the scheduled allotment process.
The selected candidates under Medical Education Services Quota shall submit a declaration to the effect that they will render their service in the Health (Medical Education) Department of the state of Kerala for the number of years as prescribed by Government.
6-6-17 Health Service Quota (HSQ) Selection to different categories of seats under Health Service Quota will be based on the single list provided by the Director of Health Services, as per clause 6-6-12. The selected candidates for Post Graduate Medical Degree/Diploma courses under Health Services Quota shall submit a declaration to the effect that they will render their service in Kerala State Health Services Department for the number of years as prescribed by Government. 6-6-18 Insurance Medical Service Quota (IMSQ) Seats as specified in Annexure III will be reserved for Medical Officers working in the Insurance Medical Service Department. Selection to the seats under IMSQ will be based on the list provided by the Director of Insurance Medical Services. The selected candidates shall submit a declaration to the effect that they will serve Insurance Medical Services Department in the specialist post immediately or as and when required by the Government, on successfully completing the course and on posting orders against the posts given by the Director of Insurance Medical Services for the number of years as prescribed by Government. 6-6-19 Unclaimed seats in any of the Service Quota categories will go to General Merit category."
51. First of all, the State Government, in its counter affidavit filed before the writ court, has not stated anywhere that the Institute of WAs:764, 802, 855, 902 & 929 of 2022 -:42:- Integrated Medical Sciences is not an instrumentality of the State. Further, material on record discloses that in all the correspondences issued by the State Government and its officials, IIMS is addressed as Government Medical College, Palakkad. Merely because the medical college is registered as a society, that would not, in any manner, take away the pervasive control of the State Government, especially due to the reason that the society is functioning under the SC/ST Development Department of the State. Above all, the Medical College is funded fully by Government of Kerala and appointments are made by the Government, in accordance with the stipulations contained under Kerala Service Rules and other allied laws, by making special rules.
52. A reference to some of the rules would be worthwhile, in order to understand the pattern of application of the service rules applicable to the State services.
53. In fact, the Service Rules was approved by the State Government as per order dated 25.05.2020, evident from Annexure-AII produced along with W.A. No.802/2022. The Rules regarding the Terms of Service of Employees (Teaching Faculty) are produced along with the said Government order, wherein, in the facing sheet, it is clearly specified WAs:764, 802, 855, 902 & 929 of 2022 -:43:- "Government Medical College (IIMS), Palakkad".
54. Rule 1.1 of the said rules states that these rules may be called 'Special Rules for the employees of Government Medical College, Palakkad (under the Society for Institute of Integrated Medical Sciences, Palakkad), 2018'. Rule 2.1 states that these rules shall apply to all the employees of the Government Medical College, Palakkad other than those whose conditions of service are Governed by contract or agreement and those appointed on daily wages or governed by separate rules or on part time or fixed tenure basis.
55. That apart, Rule 3.2 under Chapter III of the said rules defines 'Government Medical College, Palakkad' to mean the Medical College established and maintained by the Society for the Institute of Integrated Medical Sciences, registered as Sl. No.TVM/TC/584/2015 dated 20.05.2015 under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act (XII of 1955).
56. The abovesaid rules also deal with the powers of Chairman, Director, Principal, Government, Academic Staff, Administrative Staff, etc. Rule 3.16 defines 'Appointing Authority' to mean Government in the case of Director and Governing Body in the case of Registrar, Finance & WAs:764, 802, 855, 902 & 929 of 2022 -:44:- Accounts Officer and the Medical Superintendent.
57. Chapter V of the rules deals with General Conditions of Service and it clearly specifies that the rules shall apply to all persons under the service of society except when specifically exempted. The relevant rules therein are extracted hereunder:
"5.2 Except for the matters for which specific provision is included in these rules, similar provision applicable to the employees of Kerala Medical Education Service and Kerala Medical Education Subordinate Service in the following rules with such modification from time to time, as decided by the Executive Committee is applicable to the employees similarly placed in the services of the society.
5.2.1. The Kerala Service Rules Part 1, Part II and Rules from 140 to 151, Chapter X Part III, i.e. Rules relating to general conditions of service, pay, Additions to pay, combination of appointments Dismissal, Removal and suspension, compulsory retirement, Leave, Casual Leave, Joining time, Foreign Service etc. (Part I) TA (Part II) and Records of Service (Part Ill). The powers vested with Head of Office, Head of Department, and Government in these rules shall be exercised by the Principal (with respect to the Medical College) Director and Executive Committee respectively. 5.2.2. The Kerala State & Subordinate Services Rules, Part I and H relating to Recruitment Appointment.
Tests, Probation, Promotion, Confirmation (Appointment as Full Member) Relinquishment of promotion etc. The power of Appointing Authority and Disciplinary Authority now vested with Governing Body of the Society as per Rule WAs:764, 802, 855, 902 & 929 of 2022 -:45:- 7(xii) read with Rule 20(a) as amended by GO(Ms) No.43/2017/SCSTDD dated 29/5/2017 shall be delegated to the Executive Committee. The Appointment orders and termination orders etc. shall be issued by the Director on behalf of the Executive Committee.
5.2.3. Kerala Government Servants Conduct Rules, 1960. The Definitions (i) 'Government' may be construed as 'Society' wherever the Appointing Authority and Controlling Authority is meant and in other cases as Government of Kerala. (ii) 'Government Servant' may be construed as "Employee of the Society". The power vested with Head of Office, Head of Department and Government in these rules shall be delegated to the Principal (with respect to Medical College), the Director and the Executive Committee respectively.
5.2.4. The Kerala Civil Services (Classification, Control & Appeal) Rules, 1960. The delegation of power shall be as follows: -
(i) Suspension as per Rule 10-- ordering and revoking
(a) Principal - upto 15 days in Emergent situations subject to reporting the same to the Director forthwith.
(b) Director - In all other cases.
(c) To be reviewed by the Director within 90 days of suspension.
(d) Suspension beyond 90 days with the approval of Executive Committee only
(ii) The Disciplinary Authority for imposing penalties as per Rules 13(1) (1a) and 13(2) (except the power delegated to the Principal) shall be the Director.
WAs:764, 802, 855, 902 & 929 of 2022 -:46:-
(iii) The Disciplinary Authority for imposing penalty as per Rule 13(2) and 7th proviso to Rule 13(1) shall be the Principal (with respect to the Medical College).
(iv) The Appellate Authority for penalties imposed by the Principal shall be the Director and for those imposed by the Director shall be the Executive Committee.
(v) The Reviewing Authority/Revisional Authority for penalties imposed by all Disciplinary authorities shall be the Governing Body.
5.2.5. Kerala Government Servants Medical Attendance Rules, 1960 which was already extended by Government to all Public Sector Undertakings Autonomous Bodies and Statutory Undertakings - vide GO(P) No.60/2007/Fin. Dated 15/2/2007 (Annexure 1).
5.2.6. Gratuity as per Kerala Service Rules. 5.2.7. Provident Fund - Employees Provident Fund 5.2.8. Pension- National Pension System 5.2.9. Pay & Allowances and Career Advancement to Teaching Staff - As per U.G.C. Norms ordered as per G.O.(P) No.425/2009/H&FWD dated 14/12/2009 as amended by subsequent orders issued by Government time to time.
5.3 Method of recruitment/appointment: -
Subject to the rule 5.2 above, the method of recruitment/appointment to the service of the society shall ordinarily be made by-
(a) Direct recruitment
(b) Promotion
(c) Deputation from Government or Public Sector Undertakings or Autonomous Bodies.
(d) Contract Appointment WAs:764, 802, 855, 902 & 929 of 2022 -:47:-
(e) Daily wags/guest faculty 5.4 Direct Recruitment shall be made either with the assistance of Recruiting agencies under Government or by means of advertisement and selection or otherwise as approved by the Executive Committed from time to time.
5.5 Till the appointment to the service of the society is entrusted with Kerala Public Service Commission, there shall be a committee for Selection of Candidates for appointment including promotion consisting of: -
(i) Chairman of Executive Committee - Chairman of the Committee
(ii) Director - Convener of the Committee
(iii) Principal - Member
(iv) A subject expert with no voting right may be nominated by the Chairman.
5.6 The Selection Committee shall decide the appropriate method of selection. The Selection Committee shall make recommendations on the basis of marks/grade obtained in the qualifying examination or based on marks obtained in written test or marks obtained for performance in the interview held for the purpose. Maximum marks for written test shall be 100 and for interview shall be 25. Recommendation of the Selection Committee shall be effective from the date on which the Executive Committee approves the same.
5.7 Rules 14 to 17 of General Rules (Part II of Kerala State & Subordinate Services Rules, 1958) are applicable to direct recruitment to the services of the society. Reservation rules and orders in the case of differently abled persons are also to be applied for direct recruitment.
5.8 Age limit for direct recruitment:- Except in the case of Teaching Posts the minimum age for WAs:764, 802, 855, 902 & 929 of 2022 -:48:- recruitment to the service of the Society shalL not be below 18 years and the upper age limit shall be 36 years. Usual relaxation of the upper age limit i.e., 5 years in the case of SC/ST candidates and 3 years in the case of Other Backward Classes Candidates will be allowed."
58. Going through the above provisions, it could be clearly deduced that in all respects the Lecturers and other staff of Government Medical College (IIMS), Palakkad are governed by the Rules applicable to all other services under the State Government.
59. It may be true that as per the bye laws, separate rules are prescribed for appointment of Lecturers in the Medical College, but it can be seen that it is clearly specified therein that the Kerala Service Rules and other allied laws would apply for appointment of Lecturers and other staff in the Medical College in the State. Even going by the principles of law laid down by the Hon'ble Apex Court in Ramana Dayaram Shetty and Ajay Hasia (cited supra), it can be seen that when the Medical College is funded by the Government fully, it would clearly indicate that the Medical College is an instrumentality or agency of the Government.
60. That apart, it is also clear from the Governing body formulated WAs:764, 802, 855, 902 & 929 of 2022 -:49:- for the society headed by the Hon'ble Chief Minister of Kerala, Minister for Scheduled Castes, and other officials of the State Government, that the Government Medical College, Palakkad is absolutely controlled by the State Government and it has no independent existence detached from the State Government. Therefore, it is explicit and clear that there is a deep and pervasive control by the State, which is a definite and significant indication to show that IIMS is a medical college fully and absolutely controlled by the State Government through the SC/ST Development Department. In our view, the society is formed under the SC/ST department with the prime objective of finding out funding resources and to provide the maximum admissions to the students belonging to the SC/ST, in order to translate the true intentions of the provisions of the Constitution of India governing the welfare and prospects of the people belonging to the said communities.
61. The issue is no more res integra and we propose to consider a few judgments of the Hon'ble Supreme Court in that regard.
(i) In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, [(2002) 5 SCC 111], after considering the earlier decisions, the Hon'ble Supreme Court held as under:
WAs:764, 802, 855, 902 & 929 of 2022 -:50:- "11. Initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdem generis with the authorities mentioned in the definition of Article 12 itself. The next stage was reached when the definition of "State" came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature [See Praga Tools Corpn. v. C.A. Imanual, (1969) 1 SCC 585 : (1969) 3 SCR 773] . Thus a statutory corporation, with regulations framed by such corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute.
14. By 1975, Mathew, J. in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619] noted that the concept of "State" in Article 12 had undergone "drastic changes in recent years". The question in that case was whether the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life Insurance Corporation, each of which were public corporations set up by statutes, were authorities and therefore within the definition of State in Article 12. The Court affirmed the decision in Rajasthan SEB v. Mohan Lal [AIR 1967 SC 1857 : (1967) 3 SCR 377] and held that the Court could compel compliance of statutory rules. But the majority view expressed by A.N. Ray, C.J. also indicated that the concept would include a public authority which,-
"is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making a profit for the public benefit". (SCC p. 440, para 39) (emphasis added) WAs:764, 802, 855, 902 & 929 of 2022 -:51:-
15. The use of the alternative is significant. The Court scrutinized the history of the formation of the three Corporations, the financial support given by the Central Government, the utilization of the finances so provided, the nature of service rendered and noted that despite the fact that each of the Corporations ran on profits earned by it nevertheless the structure of each of the Corporations showed that the three Corporations represented the "voice and hands" of the Central Government. The Court came to the conclusion that although the employees of the three Corporations were not servants of the Union or the State, "these statutory bodies are 'authorities' within the meaning of Article 12 of the Constitution".
16. Mathew, J. in his concurring judgment went further and propounded a view which presaged the subsequent developments in the law. He said : (SCC p. 449, para 82) "A State is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State."
17. For identifying such an agency or instrumentality he propounded four indicia:
(1) "A finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as State action." (SCC p. 454, para 96) (2) "Another factor which might be considered is whether the operation is an important public function." (SCC p. 454, para 97) (3) "The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so WAs:764, 802, 855, 902 & 929 of 2022 -:52:- closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion."
(SCC p. 454, para 97) (4) "The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the Government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?" (SCC p. 458, para 111)
22. Sidestepping the majority approach in Sabhajit Tewary [(1975) 1 SCC 485 : 1975 SCC (L&S) 99 : (1975) 3 SCR 616 : AIR 1975 SC 1329], the "drastic changes" in the perception of "State" heralded in Sukhdev Singh [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619] by Mathew, J. and the tests formulated by him were affirmed and amplified in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489 : AIR 1979 SC 1628]. Although the International Airport Authority of India is a statutory corporation and therefore within the accepted connotation of State, the Bench of three Judges developed the concept of State. The rationale for the approach was the one adopted by Mathew, J. in Sukhdev Singh [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619] : (SCC p. 506, para 13) "In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the WAs:764, 802, 855, 902 & 929 of 2022 -:53:- welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm of the Government."
25. The tests propounded by Mathew, J. in Sukhdev Singh [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619] were elaborated in Ramana [(1979) 3 SCC 489 : AIR 1979 SC 1628] and were reformulated two years later by a Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] . What may have been technically characterised as obiter dicta in Sukhdev Singh [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619] and Ramana [(1979) 3 SCC 489 : AIR 1979 SC 1628] (since in both cases the "authority" in fact involved was a statutory corporation), formed the ratio decidendi of Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] . The case itself dealt with a challenge under Article 32 to admissions made to a college established and administered by a society registered under the Jammu and Kashmir Registration of Societies Act, 1898. The contention of the Society was that even if there were an arbitrary procedure followed for selecting candidates for admission, and that this may have resulted in denial of equality to the petitioners in the matter of admission in violation of Article 14, nevertheless Article 14 was not available to the petitioners because the Society was not a State within Article 12.
WAs:764, 802, 855, 902 & 929 of 2022 -:54:-
26. The Court recognised that : (SCC p. 731, para 6) "Obviously the Society cannot be equated with the Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression 'other authorities' if it is to fall within the definition of 'State'."
But it said that : (SCC p. 733, para 7) "The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights."
It was made clear that the genesis of the corporation was immaterial and that : (SCC pp. 737-38, para 11) "The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12."
27. Ramana [(1979) 3 SCC 489 : AIR 1979 SC 1628] was noted and quoted with approval in extenso and the tests propounded for determining as to when a corporation can be said to be an instrumentality or agency of the Government therein were culled out and summarised as follows : (SCC p. 737, para 9) "(1) One thing is clear that if the entire share capital of the corporation is held by the Government, it would go WAs:764, 802, 855, 902 & 929 of 2022 -:55:- a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) (3) It may also be a relevant factor ... whether the corporation enjoys monopoly status which is State- conferred or State-protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) (6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p. 510, para 18)"
40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article
12. The question in each case would be -- whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the WAs:764, 802, 855, 902 & 929 of 2022 -:56:- control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."
(ii) In State of U.P. v. Radhey Shyam Rai, [(2009) 5 SCC 577], the Hon'ble Supreme Court had considered an issue with respect to a society registered under the Societies Registration Act and held as under:
"2. The short question which arises for consideration herein is as to whether the Uttar Pradesh Ganna Kishan Sansthan (for short "the Sansthan"), a society registered under the Societies Registration Act is "State" within the meaning of Article 12 of the Constitution of India.
18. For the purpose of determining the question as to whether a society registered under the Societies Registration Act would be "State" within the meaning of Article 12 of the Constitution of India or not, the history of its constitution plays an important role. (P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984 SCC (L&S) 214]) The functions which are being performed by the Sansthan were used to be performed by the Government directly. The main purpose and object for which the training institutes were established at different places in the State of Uttar Pradesh admittedly was to provide scientific ways of sugarcane cultivation and management so as to improve the production of cane with a view to achieve better production of sugar. Such a function indisputably is a State function. The State established the "Sansthan" so as to take over its own functions. It even transferred the entire management relating to imparting of training in various institutes in its favour. All the assets held by it for the aforementioned purpose including the infrastructural facilities stood transferred in favour of the Sansthan.
19. The Sansthan was created under a government charter contained in the Government Order dated 4-8-
1975 issued in the name of the Governor of Uttar WAs:764, 802, 855, 902 & 929 of 2022 -:57:- Pradesh. A budget of Rs 6 lakhs was sanctioned in the year 1975-1976, 50% of which was made by the Government and the remaining 50% by the mills run by the State Sugar Corporation, Indian Mill Association, U.P. Sugarcane Cooperative Federation and Cane Development Societies. A sum of Rs. 2 lakhs was released immediately from the Contingent Fund of the State and the remaining amount was released on acceptance of supplementary demands and passing of appropriation bill by the legislature.
20. Some of the objectives stated in the memorandum of association are:
(i) To establish, run and maintain training institute
for the benefit of cane-growers and the
personnel in the Cane Development
Department.
(ii) To purchase land or building, etc. for
establishing the institute, auditorium, etc.
(iii) To diffuse practical and scientific ways of sugarcane cultivation and management through sugarcane research workers.
22. The Government had constituted and reconstituted a committee consisting of officers of the Government and other holders of the public office with the Cane Commissioner to streamline curriculum of training courses to be undertaken by it. The provisions of the Uttar Pradesh Sugar Cane (Purchase Tax) Act, 1961 provided for appropriation of 50% of the amount of tax from the Consolidated Fund of the State and credited to and vested in "Sakkar Vishesh Nidhi" which was to be administered by a committee headed by the Secretary to the Government in the sugar industry. The Government withdrew a huge amount from the said fund for making it available to the Sansthan in the Financial Year 1988-1989.
25. The functions of the Sansthan are public functions. WAs:764, 802, 855, 902 & 929 of 2022 -:58:-
26. From the materials placed before the Court there cannot be any doubt whatsoever that the State exercises a deep and pervasive control over the affairs of the Sansthan, the Cane Commissioner being at the helm of the affairs. The Accounts Officer is the officer of the State Government and, is also sent on deputation. The majority of the members of the Governing Council, as noticed hereinbefore, are holders of different offices of the State Government. They play a vital role in carrying out the affairs of the Sansthan. They alone have power to appoint anybody of their choice on the post. It is required to obey all the directions issued by the State Government from time to time. We, therefore, are of the opinion that the Full Bench of the High Court has rightly held the Sansthan "State" within the meaning of Article 12 of the Constitution of India."
62. Considering the factual and legal circumstances, we have no hesitation to hold that the finding rendered by the learned single Judge in the impugned judgment that the medical college in question is not an instrumentality of the State cannot be sustained under law. Accordingly, we set aside the findings rendered by the learned single Judge in that regard and hold that the Institute of Integrated Medical Sciences, Palakkad, is an instrumentality of the State having pervasive and deep administrative control of the State Government.
63. Now the question remains to be considered is, whether the Lecturers in the Medical College are entitled to be included in the Prospectus for Admission to Medical Post Graduate Decree Courses, WAs:764, 802, 855, 902 & 929 of 2022 -:59:- 2021-2022, under in-service quota.
64. The paramount contention advanced by the State Government is that since the Prospectus is issued on the basis of Kerala Medical Officers' Admission to Postgraduate Courses under Service Quota Act, 2008 and Rules, 2009, unless and until the Act, 2008 and rules framed thereunder are amended, the claims raised by the appellants cannot be considered.
65. One thing significant to be noted is that Government Medical College, Palakkad was constituted only in the year 2012, that is, subsequent to the introduction of Act, 2008 and Rules 2009, and it started functioning from the year 2014. In our view, Palakkad Medical College was established by the Government taking into account the fact that Palakkad is a vulnerable district, where more SC/ST communities are located; and the medical services to the poor people in Palakkad is underserved, and therefore, they require more medical attention and facilities for their day to day medical needs. That apart, in Palakkad district, there is no other Medical College, wherein the appellants have been working since 4.5.2017.
66. Even though the Government Medical College, Palakkad, is WAs:764, 802, 855, 902 & 929 of 2022 -:60:- constituted as a society, it is fully controlled by the State Government and they cannot be treated differently from the Medical Officers working in various departments of the State Government. The doctors working in the Medical College in question and the doctors rendering services in other medical services of the State Government can only be construed as a homogeneous class for all practical and legal purposes. Merely because a society is formed by the Government and lecturers are appointed, in accordance with the special rules constituted for the purpose, they cannot be treated as a separate and distinct class, because they are also Lecturers, functioning under the SC/ST Development Department of the Government of Kerala.
67. Merely because there are some distinctions in the service conditions, like non - transferable jobs, retirement age etc; they cannot be treated as a different class from the class of Government doctors under the Act, 2008 and Rules, 2009, who are entitled to secure admission to the Postgraduate and other courses in the service quota. Moreover, the intention of starting a Medical College at Palakkad is also for the purpose of providing better service to the members of the Scheduled Caste and Scheduled Tribe communities. With the risk of WAs:764, 802, 855, 902 & 929 of 2022 -:61:- repetition, in our view, just because, under the special rules constituted under the bye laws of the society, a recruitment method is prescribed, they cannot be treated as a distinct and different class. To put it more straight, it is an unreasonable classification interfering with the imprimatur and requirements contained under Articles 14 and 16 of the Constitution of India, and therefore, arbitrary and illegal.
68. To put it otherwise, we are of the considered opinion that the Lecturers of Government Medical College, Palakkad, are all employees appointed by the State Government, through a different method/pattern, confining their services to the Government Medical College, Palakkad. Even though a contention is advanced by the State Government that they are different from the Lecturers working in other medical colleges, we cannot accede to the said contention, for the reason that no objections are raised by the Lecturers, working in the Palakkad Medical College, to work in any other Medical Colleges, within the State.
69. We are also of the considered opinion that the exclusion of Lecturers in the IIMS, Palakkad from the provisions of Act, 2008 and Rules, 2009 thereto, is violative of Articles 14 and 16 of the Constitution of India since we have already found that the Lecturers of Government WAs:764, 802, 855, 902 & 929 of 2022 -:62:- Medical College, Palakkad, cannot be treated as a separate class, departing from the general class of doctors and lecturers under different departments of the State Government.
70. It is also important to note that Cochin Co-operative Medical College and Kannur Co-operative Medical College, registered under the Kerala Co-operative Societies Act, 1969, were taken over by the Government, by introducing a legislation viz., Kerala Co-operative Hospital Complex, the Academy of Medical Sciences and Allied Institutions (Taking Over and Administration) Act, 2019, and they are now under the control of the medical education service of the State Government, entitled to seek admission under the service quota. Therefore, it can be deduced that the Lecturers, who are erstwhile part of two Co-operative Medical Colleges, registered under the Co-operative Societies Act, 1969, got the benefits of in-service quota, in accordance with the provisions of Act, 2008 and Rules, 2009 framed thereto, consequent to the taking over of the said colleges by the Government. This we say so, for the reason that the Lecturers in the said colleges were appointed, in accordance with the bye laws and rules prescribed for the management, administration, and control of such medical colleges; WAs:764, 802, 855, 902 & 929 of 2022 -:63:- however, they are presently enjoying the status of Lecturers under the Director of Medical Education.
71. Learned Government Pleader submitted that so far as the Lecturers working in the other medical colleges are concerned, they are liable to be transferred to different areas, but the Lecturers in Government Medical College, Palakkad are working in the Palakkad Medical College alone and are not rendering similar service as that of other Lecturers in other medical colleges. However, we are unable to agree with the said contention for the basic reason the Lecturers in Palakkad Medical College are also rendering medical service, and may be confined to the district of Palakkad. That apart, it is in accordance with the bye law constituted by the State Government for the society, their services are confined to the Government Medical College, Palakkad, however, the lecturers of the Medical College, Palakkad, did not have a say in the formation of the bye laws by the State Government. Above all, even though the learned Government Pleader submitted that providing admission to a class of doctors in the in-service quota is a policy decision, and therefore, no interference is possible, we are unable to agree with the said contention for the fundamental reason that, if the policy is WAs:764, 802, 855, 902 & 929 of 2022 -:64:- tainted by arbitrariness and illegality, thus interfering with the fundamental rights of the citizens, it is well settled by a catena of decisions, that the Constitutional courts shall not hesitate to interfere.
72. That apart, we are informed by the learned Government Pleader that for the ensuing year 2022-2023, the admission process is not yet started.
73. In our considered opinion, the Lecturers of Palakkad Medical College for all practical purposes can only be treated as, under the direct control and administration of DME, Thiruvananthapuram, though constituted under the SC/ST department, and therefore, they are also entitled to be treated similar to the Lecturers in the other services mentioned in the Prospectus, and entitled to secure admission for PG Medical Courses in the in-service quota for the ensuing years, if required by making suitable amendments to the Act, 2008 and Rules, 2009 .
74. In that view of the matter, appellants are entitled to succeed in the writ appeals. Accordingly, there will be a direction to the respondents, i.e. the State Government, represented by Secretary to the Government, Department of Health and Family Welfare; Director of Medical Education; Director of Health Services; and Commissioner for WAs:764, 802, 855, 902 & 929 of 2022 -:65:- Entrance Examinations, Thiruvananthapuram, to include the qualified Lecturers of Government Medical College, Palakkad, in the Prospectus for Admission to Medical Postgraduate Degree Courses, for the ensuing years, in the in-service quota earmarked for Medical Education Service, and process the applications, in accordance with law.
In the result, writ appeals are allowed as above.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Krj WAs:764, 802, 855, 902 & 929 of 2022 -:66:- APPENDIX OF WA NO.802/2022 PETITIONER'S ANNEXURES:-
ANNEXURE -I COPY OF THE JUDGMENT DATED 31.01.2022 IN W.A. NO. 156/2022 PASSED BY THIS HON'BLE COURT.
ANNEXURE - II COPY OF THE G.O (MS) NO. 16/2020/SCSTDD DATED 25.05.2020 ISSUED BY SCST DEVELOPMENT DEPARTMENT.
RESPONDENTS' ANNEXURES:- 'NIL' WAs:764, 802, 855, 902 & 929 of 2022 -:67:- APPENDIX OF WA NO. 855/2022 PETITIONERS' ANNEXURES:-
ANNEXURE 1 COPY OF THE JUDGMENT DATED 31.01.2022 IN WA NO.151/2022 AND CONNECTED MATTERS PASSED BY THE DIVISION BENCH OF THE HON'BLE HIGH COURT.
ANNEXURE 2 COPY OF THE GO(MS.) NO.43/2017/SCSTDD. DATED 29.05.2017 ISSUED BY THE SC-ST DEPARTMENT OF GOVERNMENT OF KERALA. ANNEXURE 3 COPY OF THE GO(RT.) NO.465/2022/SCSTDD. DATED 28.04.2022 ISSUED BY THE SC-ST DEPARTMENT OF GOVERNMENT OF KERALA. ANNEXURE 4 COPY OF THE RTI QUERY DATED 06.05.2022 SUBMITTED BY ONE ROHITH SR BEFORE THE SC-ST DEPARTMENT OF GOVERNMENT OF KERALA ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 5 COPY OF THE REPLY DATED 21.05.2022 ISSUED BY THE SC- ST DEPARTMENT OF GOVERNMENT OF KERALA ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 6 COPY OF THE RTI QUERY SUBMITTED BY ONE DR. AMAL KUMAR V BEFORE THE PRO, GOVERNMENT MEDICAL COLLEGE, KOTTAYAM ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 7 COPY OF THE REPLY DATED 14.05.2022 ISSUED BY THE PUBLIC INFORMATION OFFICER, GOVERNMENT MEDICAL COLLEGE HOSPITAL, THRISSUR ALONG WITH ITS TRUE ENGLISH TRANSLATION. ANNEXURE 8 COPY OF THE RTI REPLY DATED 30.06.2022 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF GOVERNMENT MEDICAL COLLEGE, PALAKKAD TO ONE DR. ROHIT S.R. ALONG WITH ITS TRUE ENGLISH TRANSLATION. RESPONDENTS' ANNEXURES:- 'NIL' WAs:764, 802, 855, 902 & 929 of 2022 -:68:- APPENDIX OF WA NO. 902/2022 PETITIONER ANNEXURES:-
ANNEXURE 1 COPY OF GO(MS.) NO.43/2017/SCSTDD. DATED 29.05.2017 ISSUED BY THE SC/ST DEPARTMENT OF GOVERNMENT OF KERALA.
ANNEXURE 2 COPY OF THE GO(RT.) NO.465/2022/SCSTDD. DATED 28.04.2022 ISSUED BY THE SC/ST DEPARTMENT OF GOVERNMENT OF KERALA. ANNEXURE 3 COPY OF THE RTI QUERY DATED 06.05.2022 SUBMITTED BY ONE ROHITH SR BEFORE THE SC-ST DEPARTMENT OF GOVERNMENT OF KERALA ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 4 COPY OF THE REPLY DATED 21.05.2022 ISSUED BY THE SC/ST DEPARTMENT OF GOVERNMENT OF KERALA ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 5 COPY OF THE RTI QUERY SUBMITTED BY ONE DR. AMAL KUMAR V., BEFORE THE PRO, GOVERNMENT MEDICAL COLLEGE, KOTTAYAM, ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 6 COPY OF THE REPLY DATED 14.05.2022 ISSUED BY THE PUBLIC INFORMATION OFFICER, GOVERNMENT MEDICAL COLLEGE HOSPITAL, THRISSUR ALONG WITH ITS TRUE ENGLISH TRANSLATION. ANNEXURE 7 COPY OF THE THE RTI REPLY DATED 30.06.2022 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF GOVERNMENT MEDICAL COLLEGE, PALAKKAD TO ONE DR. ROHIT S.R. ALONG WITH ITS TRUE ENGLISH TRANSLATION.
RESPONDENTS' ANNEXURES:-' NIL' WAs:764, 802, 855, 902 & 929 of 2022 -:69:- APPENDIX IN W.A. NO.929 OF 2022 PETITITIONER'S ANNEXURES:
ANNEXURE-1 COPY OF THE JUDGMENT DATED 31.01.2022 IN W.A. NO.151/2022 AND CONNECTED MATTERS PASSED BY THE DIVISION BENCH OF THE HON'BLE HIGH COURT.
ANNEXURE 2 COPY OF GO(MS.) NO.43/2017/SCSTDD. DATED 29.05.2017 ISSUED BY THE SC/ST DEPARTMENT OF GOVERNMENT OF KERALA.
ANNEXURE 3 COPY OF THE GO(RT.) NO.465/2022/SCSTDD. DATED 28.04.2022 ISSUED BY THE SC/ST DEPARTMENT OF GOVERNMENT OF KERALA. ANNEXURE 4 COPY OF THE RTI QUERY DATED 06.05.2022 SUBMITTED BY ONE ROHITH SR BEFORE THE SC-ST DEPARTMENT OF GOVERNMENT OF KERALA ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 5 COPY OF THE REPLY DATED 21.05.2022 ISSUED BY THE SC/ST DEPARTMENT OF GOVERNMENT OF KERALA ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 6 COPY OF THE RTI QUERY SUBMITTED BY ONE DR. AMAL KUMAR V., BEFORE THE PRO, GOVERNMENT MEDICAL COLLEGE, KOTTAYAM, ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 7 COPY OF THE REPLY DATED 14.05.2022 ISSUED BY THE PUBLIC INFORMATION OFFICER, GOVERNMENT MEDICAL COLLEGE HOSPITAL, THRISSUR ALONG WITH ITS TRUE ENGLISH TRANSLATION. ANNEXURE 8 COPY OF THE THE RTI REPLY DATED 30.06.2022 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF GOVERNMENT MEDICAL COLLEGE, PALAKKAD TO ONE DR. ROHIT S.R. ALONG WITH ITS TRUE ENGLISH TRANSLATION.
ANNEXURE 9 COPY OF THE SCORE CARD OF THE APPELLANT IN NEET PG-2022. RESPONDENTS' ANNEXURES:- 'NIL' //TRUE COPY// P.A. TO JUDGE