Kerala High Court

Dr.Shanavas Khan K vs The Commissioner For Entrance ... on 18 March, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
     FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
                        WP(C) NO. 7481 OF 2022
PETITIONER:

          DR.SHANAVAS KHAN K,
          AGED 43 YEARS,
          ASSISTANT INSURANCE MEDICAL OFFICER,
          ESI DISPENSARY KERALAPURAM,
          KOLLAM, PIN-691 014, S/O A.KAMAL,
          PUTHENVEEDU,
          CHANDANATHOPU P.O., KOLLAM-691 014.

          BY ADVS.
          SRI.GEORGE THOMAS (MEVADA)(SR.)
          SRI.AMAL GEORGE


RESPONDENTS:

    1     THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
          HOUSING BOARD BUILDING, THAMPANOOR,
          THIRUVANANTHAPURAM, PIN-695 001.

    2     THE DIRECTOR OF MEDICAL EDUCATION,
          KERALA STATE, MEDICAL COLLEGE P.O.,
          CHALAKUZHY, THIRUVANANTHAPURAM, PIN-695 011

    3     GOVERNMENT OF KERALA HEALTH & FAMILY WELFARE
          DEPARTMENT,
          GOVT SECRETARIAT, STATUE JUNCTION,
          THIRUVANANTHAPURAM, PIN-695 001

    4     DIRECTOR OF INSURANCE MEDICAL SERVICE,
          DIRECTORATE OF INSURANCE MEDICAL SERVICE,
          THAIKKAD, THIRUVANANTHAPURAM, PIN-695 014.

    5     DR. DIANA JULIET,
          ASSISTANT INSURANCE MEDICAL OFFICER,
          EST HOSPITAL ERNAKULAM, COCHIN-18

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

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)No.7481/2022

                                   2




                          JUDGMENT

Dated this the 18th day of March, 2022

The petitioner, who is an Assistant Insurance

Medical Officer working in ESI Dispensary, Keralapuram,

Kollam, is aggrieved by the erroneous exclusion of the

petitioner from being considered for allotment of seat for

Post Graduate Medical Course in the quota reserved for

Insurance Medical Officers.

2. The petitioner submits that he appeared in the

NEET PG examination and his weightage mark is 493.81.

The 5th respondent's weightage mark is 359.90 only. The

petitioner has 5 years and 10 months of service, whereas

the 5th respondent's service is only of 3 years and 6

months. Nevertheless, the petitioner is not being selected

for admission to PG Medical Course under the Insurance WP(C)No.7481/2022

Medical Officer's quota while the 5th respondent is

included in the select list.

3. The petitioner submits that as per Clause 4.1 of

Ext.P4 Prospectus for admission to Post Graduate

Medical Courses, the applicants should be in possession

of MBBS Degree or provisional MBBS pass Certificate

recognised by NMC (MCI) with MBBS qualification

registered permanently or provisionally with NMC (MCI) or

State Medical Council and who have completed one year

of internship or are likely to complete it on or before

30.06.2021. The petitioner submits that the period of his

probation expired on 11.03.2018. But, due to no fault of

the petitioner, his probation was declared only on

03.03.2022. The petitioner's probation was declared on

03.03.2022 as per Ext.P2 Order of the Director of

Insurance Medical Services. Ext.P2 proceedings would

show that the petitioner had qualified the mandatory WP(C)No.7481/2022

Departmental Test in January 2018 itself. As per Ext.P2,

his probation was declared in the cadre of Assistant

Insurance Medical Officer with effect from the forenoon of

12.03.2018 only.

4. The petitioner, therefore, contends that he was

amply qualified for admission to the PG Medical Course.

Nevertheless, the petitioner is not being selected for

admission for the sole reason that his probation was

declared only on 03.03.2022.

5. The learned Senior Counsel assisted by the

learned counsel for the petitioner would urge that it is the

successful completion of the period of probation which is

relevant and it is not the date of declaration of probation.

If the date of declaration is taken as the criteria for

admission to PG Courses, the petitioner and similarly

situated others, who have successfully completed the

period of probation long back, but whose declaration of WP(C)No.7481/2022

probation was delayed for no fault of theirs, would be

excluded from the purview of consideration.

6. The learned Senior Counsel pointed out that as

per Ext.P4 Prospectus, the Government has retained the

power to revise any order passed by a subordinate

authority, in order to avoid injustice meted out to

candidates in the matter of admission to PG Medical

Courses. The Government is bound to exercise the power

under Clause 19 of Ext.P4 Prospectus, in favour of the

petitioner.

7. The learned Government Pleader entered

appearance and resisted the writ petition. The learned

Government Pleader submitted that the petitioner joined

the Insurance Medical Department on 13.06.2013. The

petitioner was absent for 196 days. A disciplinary

proceedings was initiated against the petitioner. The

petitioner rejoined the Department on 11.03.2016. The WP(C)No.7481/2022

petitioner failed to submit documents for PSC/Police

Verification and therefore his service was not regularised.

Additional documents were required from the petitioner

and he was directed to produce the previous service

details. After PSC Verification on 24.02.2022 and Police

Verification on 26.02.2022, his service was regularised on

02.03.2022. Consequently, his probation was declared on

03.03.2022. There is no deliberate delay on the part of

the respondents in the declaration of probation of the

petitioner.

8. The learned Government Pleader pointed out

that Ext.P4 Prospectus was published on 15.01.2022. A

provisional list for admission was published on

01.03.2022. During this time, the petitioner was not

qualified, as his probation was not declared. Ultimately,

final list was published on 03.03.2022. As the petitioner's

probation was not declared, he was not included in the WP(C)No.7481/2022

final list. The petitioner's probation was declared only as

per Ext.P2. As the petitioner's probation was actually

declared though retrospectively only on 03.03.2022, the

petitioner could not have been included in the list.

9. The learned Senior Counsel assisted by the

learned counsel for the petitioner pointed out that as per

Rule 20 of Part II KS & SSR, at the end of the prescribed

or extended period of probation, the Appointing Authority

shall consider the probationer's suitability for full

membership of the service. If the Appointing Authority has

failed to consider the suitability of the petitioner at the end

of his period of probation, the petitioner cannot be made to

suffer. Similarly, under Rule 20(b) of Part II KS & SSR, if

the Appointing Authority decides that a probationer is

suitable for such membership, it shall as soon as possible

issue an order declaring the probationer to have a

satisfactory completion of his probation. WP(C)No.7481/2022

10. When the Rules mandate that probation of a

candidate is to be considered and declared immediately

on the expiry of the period of probation, the petitioner

cannot be made to suffer in any manner due to the failure

of the Appointing Authorities to declare the probation. The

learned Senior Counsel also pointed out that as per Rule

24 of Part II KS & SSR, an approved probationer shall be

appointed to be a full member of the service in the class or

category for which he was elected, at the earliest possible

opportunity in any substantive vacancy which exists or

arise in the permanent cadre.

11. I have heard the learned counsel for the

petitioner and the learned Government Pleader

representing the respondents.

12. The petitioner has scored a fairly high

weightage mark comparing to the 5th respondent in the

examination for admission to PG Medical Course. The WP(C)No.7481/2022

petitioner is having a longer service also as Assistant

Insurance Medical Officer. However, the petitioner was

not included in the list of admission to PG Medical Course

for the reason that his probation was not declared. The

case of the petitioner is that the delay in declaration of

probation cannot be a reason to deny legal right of the

petitioner for admission to PG Medical Course. It is the

date of completion of probation, which is relevant and not

the date of declaration.

13. The period of the petitioner's probation was

originally fixed to be up to 11.03.2018. The probation of

the petitioner was not declared immediately after the said

period. It was declared only on 03.03.2022. In the

meanwhile, Ext.P4 Prospectus for admission to PG

Medical Course was published on 15.01.2022. The

respondents published a provisional select list on

01.03.2022. During this period, the respondents could not WP(C)No.7481/2022

have selected the petitioner for admission to the PG

Medical Course because his successful completion of

probation was not declared. The respondents published

the final list on 03.03.2022. The petitioner's probation was

actually declared only on that day, though retrospectively.

In circumstances, it is evident that the respondents could

not have legally included the petitioner's name in the

select list, in view of the specific conditions in Ext.P4

Prospectus, especially Clause 6.6.12.

14. The petitioner would contend that it is the date

of successful completion of the probation that is to be

considered and not the date of declaration. In the present

case, as on the date of publication of the provisional list,

the petitioner's successful completion of probation was not

declared. Therefore, going by the terms of the Prospectus,

the respondents could not have included the petitioner in

the select list.

15. The further argument of the petitioner is that in

view of Rule 20(b) and Rule 24 of Part II KS & SSR, it is

the duty of the Superior Officers to take expeditious steps

for declaration of the probation of the petitioner

immediately after the prescribed probation period. Their

failure cannot adversely affect the petitioner. Though the

Rules direct that satisfactory completion of probation

should be declared after the period of completion of

probation, the said provisions alone cannot entitle the

petitioner admission to PG Medical Course. In the facts

and circumstances of the case, this Court does not deem

it a fit case for the Government to invoke its revisional

powers under Clause 19 of Ext.P4 Prospectus. True, the

petitioner has lost an opportunity to get admitted to PG

Medical Course due to the delayed declaration of his

probation period. It can only be treated as an accident of

service.

In the facts and circumstances stated above,

this Court do not find it appropriate to interfere in the

selection made by the respondents to PG Medical Course

and unsettle the same. The writ petition fails and it is

accordingly dismissed.

Sd/-

APPENDIX OF WP(C) 7481/2022

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE PHOTO COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 2.3.2022 Exhibit P2 TRUE PHOTOCOPY OF THE COMMUNICATION OF THE 4TH RESPONDENT DATED 3.3.2022 Exhibit P3 TRUE PHOTOCOPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT BY EMAIL DATED 4.3.2022 Exhibit P4 TRUE PHOTOCOPY OF THE ORDER DATED 15.1.2022 AND CLAUSES T TO 19 OF THE PROSPECTUS ATTACHED THERETO.

Exhibit P5 TRUE PHOTOCOPY OF THE 2021 SCORE CARD FOR THE NEET PG EXAMINATION ISSUED TO THE PETITIONER.

Exhibit P6 TRUE PHOTOCOPY OF THE SELECT LIST UNDER THE IMS QUOTA FOR 2021-22 DATED 3.3.2022 Exhibit P7 TRUE PHOTOCOPY OF THE REQUEST FOR REGULARISATION OF SERVICE FORWARDED BY INSURANCE MEDICAL OFFICER NEDUMPANA TO THE REGIONAL DEPUTY DIRECTOR, INSURANCE MEDICAL SERVICES KOLLAM DATED 30.11.2019 Exhibit P8 TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE OFFICE OF REGIONAL DEPUTY DIRECTOR, INSURANCE MEDICAL SERVICES KOLLAM (SOUTHERN ZONE) DATED 21.12.2019 Exhibit P9 TRUE PHOTOCOPY OF THE COVERING LETTER OF REGIONAL DEPUTY DIRECTOR, INSURANCE MEDICAL SERVICES KOLLAM (SOUTHERN ZONE) TO THE DIRECTOR INSURANCE MEDICAL SERVICES FORWARDING THE REQUEST FOR REGULARISATION OF SERVICE ETC OF THE PETITIONER DATED 6.12.2021