Kerala High Court
Dr.Baiju Kishor B.S vs State Of Kerala on 25 August, 2022
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.
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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.
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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.
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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.
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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
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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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
"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
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
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
(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
(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
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
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
"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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
