State Of Kerala, Rep. By The ... vs Dr.Firos Ahammed.A., S/O M.Abdul ...
2022 Latest Caselaw 1444 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                         PRESENT
                THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                             &
                    THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
           WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
                                   WA NO. 163 OF 2022
                 (Against the order dated 27.1.2022 in W.P.(C)No.2622/2022)


APPELLANTS/RESPONDENTS IN WPC:

      1      STATE OF KERALA, REP. BY THE SECRETARY,
             DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM-695001, PIN - 695 001

      2      THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION,
             MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM, PIN - 695 001

      3      THE COMMISSIONER OF ENTRANCE EXAMINATIONS,
             THIRUVANANTHAPURAM, PIN - 695001

      4      THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, KALAMASSERY, HMT COLONY,
             KOCHI, PIN - 683 503

             BY ADVS.SRI.P.G.PRAMOD, GOVERNMENT PLEADER




RESPONDENT/PETITIONER IN WPC:

             DR.FIROS AHAMMED.A., S/O M.ABDUL SALIM, AGED 33 YEARS
             JUNIOR RESIDENT/LECTURER, DEPARTMENT OF GENERAL SURGERY, GOVERNMENT
             MEDICAL COLLEGE, KALAMASSERY, HMT COLONY, KOCHI-683 503, RESIDING AT
             SAMEER MANZIL, P.V.NORTH, THAZHAVA.P.O., KARUNAGAPPALLY TALUK,
             KOLLAM DISTRICT, PIN - 690 523

             BY ADV S.SUJIN
             SRI. N.N.SUGUNAPALAN (SR)

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.A.NO.163 OF 2022
                                        :: 2 ::



                                   JUDGMENT

Dated this the 2nd day of February 2022

S.MANIKUMAR, C.J.

This writ appeal is filed by the appellants, who are the respondents in

the writ petition, being aggrieved by the interim order dated 27.1.2022 in

W.P.(C)No.2622/2022 directing the respondents 2 and 3 in the writ petition

namely, the Director of Medical Education and the Commissioner of Entrance

Examinations respectively, to include the name of the respondent/petitioner

in the list to be published for PG Medical Courses under service quota

provisionally.

2. Reliefs sought for in the writ petition are as follows:

i) to issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent/the Director of Medical Education and 3rd respondent/the Commissioner of Entrance Examinations to reserve a seat in Post Graduate Medical Course in General Surgery in service quota under DME.

ii) to issue a writ of mandamus or any other appropriate writ, order or direction directing the Kerala Administrative Tribunal to deliver the order in O.A.(Ekm)No.743/2020 which is taken for orders at the earliest.

3. Pending disposal of the writ petition, writ petitioner has sought for

the following interim relief:

"direct the 2nd respondent/the Director of Medical Education and 3 rd respondent/the Commissioner of Entrance Examinations to reserve a seat in Post Graduate Medical Course in General Surgery in service W.A.NO.163 OF 2022 :: 3 ::

quota under DME, during the pendency of the writ petition."

4. Giving due consideration to the averments in the writ petition and

the direction sought for in the interim relief, the writ court on 27 th January

2022 in W.P.(C)No.2622/2022 ordered thus:

"The petitioner submits that the authorities have recommended regularisation of the service of the petitioner as per Ext.P2. The Kerala Administrative Tribunal has heard O.A.No.743 of 2020 filed by the petitioner seeking regularisation and the said O.A is posted to 01.02.2022 for passing final orders. Therefore, if the respondents proceed to publish the select list without regard to the claim of the petitioner, the petitioner will be put to irreparable loss and untold hardship.

2. Admit.

3. The learned Government Pleader takes notice for respondents 1 to 4.

4. In the circumstances of the case, there will be an interim order directing respondents 2 and 3 to include the name of the petitioner also in the list to be published for admission to P.G Medical Course under Service Quota. The inclusion of the name of the petitioner will be strictly provisional and would be subject to further orders from this Court.

Post this writ petition on 03.02.2022 for further orders."

5. According to Sri.P.G.Pramod, learned Government Pleader

appearing for the appellants, Rules 4 and 5 stipulate that the candidates

should be a regular staff with minimum service as prescribed therein. But

the respondent/writ petitioner does not have the eligibility as he is not a

regular employee in Medical Education Service as provided under the Act of

2008 and the Rule of 2009. He further contended that as per the direction of

the National Medical Commission, the admission to PG Medical Courses are to W.A.NO.163 OF 2022 :: 4 ::

be completed on or before 3.2.2022. Therefore, inclusion of the petitioner

though provisionally in service quota may lead the admission process getting

entangled with further litigations. Another contention raised by the

appellants is that the learned Single Judge has not appreciated clause 6-6-12

of the prospectus issued by the Government while passing the interim order.

Clause 6-6-12 of the prospectus issued by the Government deals with the

eligibility for service quota prescribes that the applicants under service quota

should have necessarily completed their probation in the respective cadre,

which means an applicant should be a full member of the respective service.

6. On this day, when the matter came up for hearing,

Mr.N.N.Sugunapalan, learned Senior Counsel appearing for the

respondent/writ petitioner submitted that O.A.No.743 of 2020 filed by the

petitioner seeking regularisation was allowed on 1.2.2022, directing

regularisation of the respondent/writ petitioner in Government service from

2016 onwards. Submission of the learned Senior Counsel is placed on record.

7. As on the date of filing of the writ petition, the only impediment in

considering the case of the writ petitioner to avail the eligibility for service

quota was that he did not satisfy the conditions stipulated in the Kerala

Medical Officers Admission to Post Graduate Courses under Service Quota

Act, 2008 and the the Kerala Medical Officers Admission to Post Graduate W.A.NO.163 OF 2022 :: 5 ::

Courses under Service Quota Rules, 2009 and the Prospectus. Now that the

Kerala Administrative Tribunal has directed absorption and regularisation of

the respondent/writ petitioner from 2016 onwards, it is for the appellants 1

to 3 to consider inclusion of the case of the respondent/writ petitioner,

keeping in mind the prospectus issued for admission to Medical Post

Graduate Degree Courses 2021-2022, the statutory provisions and the G.O.

(MS)No.18/2022/H&FWD dated 15.1.2022.

8. Sri.P.G.Pramod, learned Government Pleader appearing for the

appellants shall communicate copy of the judgment to the appellants

forthwith.

Writ appeal is accordingly disposed of.

(Registry is directed to issue a copy of this judgment today itself.)

sd/-

S.MANIKUMAR CHIEF JUSTICE

sd/-

SHAJI P. CHALY JUDGE jes W.A.NO.163 OF 2022 :: 6 ::

APPENDIX

APPELLANT'S ANNEXURES:

Annexure1 TRUE COPY OF THE KERALA MEDICAL OFFICERS ADMISSION TO POST GRADUATE COURSES UNDER SERVICE QUOTA ACT, 2008

Annexure4 PETITION FOR ACCEPTING ANNEXURES

Annexure2 TRUE COPY OF THE KERALA MEDICAL OFFICERS ADMISSION TO POST GRADUATE COURSES UNDER SERVICE QUOTA RULES, 2009

Annexure3 TRUE COPY OF RELEVANT PORTIONS OF PROSPECTUS

// True Copy //

P.S. to Judge