Dr.Firos Ahammed.A vs State Of Kerala
2023 Latest Caselaw 5750 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

                THE HONOURABLE MR.JUSTICE V.G.ARUN

    WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945

                     WP(C) NO. 14906 OF 2022

PETITIONER/S:

          DR.FIROS AHAMMED.A
          AGED 33 YEARS
          S/O.M.ABDUL SALIM, JUNIOR RESIDENT/LECTURER,
          DEPARTMENT OF GENERAL SURGERY,GOVERNMENT MEDICAL
          COLLEGE, ERNAKULAM, HMT COLONY, KOCHI-8685O3, RESIDING
          AT :SAMEER MANZIL, P.V.NORTH, THAZHAVA.P.O,
          KARUNAGAPPALLY, KOLLAM DISTRICT,PIN-690523.
          BY ADVS.
          ABDUL SALIM M.
          N.N.SUGUNAPALAN (SR.)


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH AND
          FAMILY WELFARE, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695001.
    2     THE DIRECTOR OF MEDICAL EDUCATION,
          DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE.P.O,
          THIRUVANANTHAPURAM-695001.
    3     THE COMMISSIONER OF ENTRANCE EXAMINATIONS,
          5TH FLOOR KSHB BUILDING, S S KOVIL ROAD, SANTHI NAGAR,
          THIRUVANANTHAPURAM-695001.
    4     DR.MANOJ ANTONY,
          LECTURER IN GENERAL SURGERY,DEPARTMENT OF GENERAL
          SURGERY, GOVERNMENT MEDICAL COLLEGE, ERNAKULAM, HMT
          COLONY, KOCHI-683503.
    5     ADDL. DR.JITHIN THOMAS JOHN
          AGED 32 YEARS
          LECTURER IN GENERAL MEDICINE, DEPARTMENT OF GENERAL
          MEDICINE, GOVERNMENT MEDICAL COLLEGE, THRISSUR-
          680596(SL NO.5).
    6     ADDL.R6.DR.BIBIN B. PALLATH
          AGED 38 YEARS
          AGED 38 YEARS, S/O. BHARATWAJ PALLATH, RESIDING AT LAL
          BAAG, CHEMMAD, THIRURANGADI, MALAPPURAM-676306(SL
          NO.7). ADDL.R5 AND R6 IMPLEADED AS PER ORDER DATED 4-
          5-2022 IN IA 1/2022).
    7     DR.SHIJI A.R
          AGED 37 YEARS
          D/O. A.A.RAJAN, USHASS, KADAVU ROAD, MUZHAPPILANGAD,
          KANNUR DISTRICT.
          BY ADVS.
          ADVOCATE GENERAL OFFICE KERALA
 W.P.(C) Nos.14906 and 20300 of 2022

                                      -2-


            M.K.CHANDRA MOHANDAS
            K.M.MUHAMMED HUSSAIN
            M.SASINDRAN(KB1/516/1987)
            K.V.SREE VINAYAKAN(K/93/2006)
            SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50)
            SHAKTHI PRAKASH


      THIS WRIT PETITION (CIVIL) HAVING     BEEN FINALLY HEARD ON

03.11.2022, ALONG WITH WPC 20300/2022, THE COURT ON 24.05.2023

DELIVERED THE FOLLOWING:
 W.P.(C) Nos.14906 and 20300 of 2022

                                      -3-



               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                  THE HONOURABLE MR.JUSTICE V.G.ARUN

     WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945

                        WP(C) NO. 20300 OF 2022

PETITIONER/S:

             DR.FIROS AHAMMED.A.,
             AGED 33 YEARS
             S/O M. ABDUL SALIM, JUNIOR RESIDENT/ LECTURER,
             DEPARTMENT OF GENERAL SURGERY, GOVERNMENT MEDICAL
             COLLEGE, KALAMASSERY, HMT COLONY, KOCHI - 683503,
             RESIDING AT: SAMEER MANZIL, P.V. NORTH, THAZHAVA P.O,
             KARUNAGAPPALLYTALUK, KOLLAM DISTRICT PIN-690 523.
             BY ADVS.
             S.SUJIN
             ABDUL SALIM M.


RESPONDENT/S:

     1       STATE OF KERALA,
             REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH &
             FAMILY WELFARE, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.
     2       THE DIRECTOR OF MEDICAL EDUCATION,
             DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O.
             THIRUVANANTHAPURAM - 695 001.
     3       THE COMMISSIONER OF ENTRANCE EXAMINATIONS,
             5TH FLOOR KSHB BUILDING, S SKOVIL ROAD, SANTHI NAGAR,
             THIRUVANANTHAPURAM-695 001.
     4       THE PRINCIPAL,
             GOVERNMENT MEDICAL COLLEGE KALAMASSERY, HMT COLONY,
             KOCHI 683 503.
             BY ADVS.
             ADVOCATE GENERAL OFFICE KERALA
             SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50)


         THIS WRIT PETITION (CIVIL) HAVING    BEEN FINALLY HEARD ON

03.11.2022, ALONG WITH WPC 14906/2022, THE COURT ON 24.05.2023

DELIVERED THE FOLLOWING:
 W.P.(C) Nos.14906 and 20300 of 2022

                                      -4-



                             JUDGMENT

Dated this the 24th day of May, 2023

The petitioner is working as Junior Resident

in the Department of General Surgery in the

Government Medical College, Ernakulam. He was

appointed on contract basis on 04.12.2012 and

continued in service without break. Although the

service of 11 other persons appointed on contract

basis was regularised, the petitioner was made

to continue on contract basis. Later, the Co-

operative Medical College was taken over by the

Government. In the letter issued by the Special

Officer, Government Medical College, Ernakulam to

the Government with regard to the take over, a

list containing 11 posts of Lecturer was

appended. The petitioner was at serial No.2 in

the list. In spite of that letter, the

petitioner's service was not regularised. W.P.(C) Nos.14906 and 20300 of 2022

Therefore, he filed O.A.No. (EKM) 743/2020 before

the Kerala Administrative Tribunal seeking

regularisation of service. While that original

application was pending, petitioner appeared for

the NEET PG Medical Examination of the year 2020-

2021 and secured 351 out of 800 marks. Being an

OBC candidate, he was eligible for selection to

the Post Graduate post in the seat reserved for

in-service candidates.

2. Apprehending that his claim would be

rejected on the ground that his service is not

regularised, the petitioner filed W.P.(C) No.2622

of 2022 praying for reserving the third seat in

General Surgery. In the writ petition an interim

order was passed, directing to provisionally

include the petitioner's name in the list to be

published for admission to PG Medical Course

under in-service quota. Challenging that interim

order, the Government preferred Writ Appeal W.P.(C) Nos.14906 and 20300 of 2022

No.163 of 2022. While so, petitioner's original

application [O.A (EKM) No.743/2020] was allowed,

declaring the petitioner to be entitled for

integration/absorption into service of the

Government as Lecturer in General Surgery at the

Government Medical College, Ernakulam.

Consequently, the Government was directed to

take a decision on the petitioner's eligibility

for admission to PG course as an in-service

candidate. In the light of the order passed in

the original application, the writ appeal filed

by the Government was disposed of, directing the

respondents to consider the petitioner's claim,

keeping in mind the prospectus issued for

admission to Medical Post Graduate Degree

Courses, 2021-2022, the statutory provisions and

the relevant Government orders.

3. Thereafter, a list of candidates

selected for admission for DNB post (MBBS) course W.P.(C) Nos.14906 and 20300 of 2022

in-service quota under the Director of Medical

Education was published. As the petitioner's name

did not figure in the list, he preferred W.P.(C)

No.2622 of 2022. That writ petition was disposed

of with a direction to consider petitioner's

application for admission to DNB post (MBBS)

course under in-service quota.

4. While matters stood so, the Government

filed an original petition challenging the

direction in O.A.(EKM) No.743 of 2020. Meanwhile,

the petitioner appeared for NEET PG Medical

Examination of the year 2022 and secured 248 out

of 800 marks and became eligible for admission

to Post Graduate Medical Course/DNB post (MBBS)

course under in-service quota. The petitioner

filed W.P.(C) No.14906 of 2022 at that stage,

seeking a writ of mandamus to include his name in

the rank list to be prepared for admission to the

Post Graduate Medical Course/DNB post (MBBS) W.P.(C) Nos.14906 and 20300 of 2022

course General Surgery in the in-service quota.

After filing of the writ petition, the original

petition filed by the Government, challenging

the order in OA(EKM) No.743 of 2020, was

dismissed, affirming the findings of the

Tribunal. W.P.(C) No.20300 of 2022 was

necessitated, since no seat was allocated for

General Surgery for medical education in the in-

service quota, in the prospectus for the academic

year 2022-2023.

5. Heard Adv.N.N.Suganapalan, learned

Senior Counsel appearing for the petitioner as

instructed by Adv.Abdul Salim M, and Government

Pleader Adv.P.G.Pramod.

6. Learned Senior Counsel referred to the

finding of the Kerala Administrative Tribunal

and the directions in judgments of the Single and

Division Benches to contend that the respondents

were bound to include the petitioner's name and W.P.(C) Nos.14906 and 20300 of 2022

allocate a seat to him in General Surgery under

in-service quota. It is contended that non-

allocation of any seat for General Surgery for

in-service quota under Director of Medical

Education in the prospectus of 2022-23 is a mala

fide exercise of power made with intention to

deny the seat for which the petitioner is

eligible.

7. Learned Government Pleader contended

that the petitioner is not eligible for inclusion

in the list and allocation of seat as per the

prospectus and the Government order. Reference is

made to the relevant Clause in the

prospectus/information bulletin for admission to

DNB post MBBS dealing with eligibility for

service quota candidates. It is pointed out that

as per that Clause, the applicants under service

quota should have successfully completed their

probation in the respective cadre and other cases W.P.(C) Nos.14906 and 20300 of 2022

will not be entertained on any account. Further,

provisional service under MES/DHS/IMS, if any

before the regular appointment, will not be

considered. Hence, the only applicants who have

successfully completed their probation in the

respective cadre at the time of issuance of CEE

notification inviting applications will be

considered for admission under service quota. As

the petitioner's probation was not declared at

the time of issuance of notification, he was not

eligible for allocation of a seat as an in-

service candidate. In answer to the challenge

against non-allocation of seats for General

Surgery in in-service quota for the academic year

2022-2023, it was submitted that the prospectus

prescribes the principle to be followed for

roster preparation as well as seat matrix

preparation and the seat matrix of 2022-2023 was

prepared following that principle. W.P.(C) Nos.14906 and 20300 of 2022

8. In reply, the Senior Counsel submitted

that other in-service candidates were given

admission to Post Graduate courses under in-

service quota prior to the declaration of their

probation and drew attention to certain

documents.

9. The Government Pleader clarified that

candidates were admitted prior to the declaration

of their probation during the year 2016, since

the prospectus of 2016, did not contain a clause

mandating declaration of probation as an

eligibility condition.

10. It is true that the KAT as well as this

Court had directed to consider the petitioner's

claim for allocation of seat under service quota,

in view of the regularisation of his service. At

the same time, such consideration was to be made

in terms of the prospectus and the relevant

Government order. The eligibility clause in the W.P.(C) Nos.14906 and 20300 of 2022

prospectus, with respect to service quota

candidates, require the candidate to have

completed his probation as on the date of

issuance of notification by the CEE.

Indisputably, the petitioner's probation was not

declared on the date of notification. The

contention that other service quota candidates

were granted admission prior to declaration of

probation cannot be entertained in view of the

clarification that the prospectus of that year

did not contain a clause mandating declaration of

probation as criteria for eligibility. Even

otherwise, the petitioner is not entitled for any

relief based on negative equity.

11. As rightly contended by the learned

Government Pleader, allocation of seats for

General Surgery under service quota based on the

seat matrix is within the domain of the

administrative authorities and not amenable to W.P.(C) Nos.14906 and 20300 of 2022

the writ jurisdiction of the High Court, unless

patent illegality is pointed out. The petitioner

having not succeeded in pointing out any such

illegality, the challenge against non-inclusion

of General Surgery seats for in-service quota

candidates in the prospectus for the academic

year 2022-2023, is also rejected.

For the aforementioned reasons, the writ

petitions are dismissed.

Sd/-

V.G.ARUN JUDGE Scl/ W.P.(C) Nos.14906 and 20300 of 2022

APPENDIX OF WP(C) 14906/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE INTERIM ORDER IN WP(C)NO.2622/2022 DATED 27.01.2022. Exhibit P2 TRUE COPY OF THE JUDGMENT IN OA (EKM)NO.743/2020 BY THE KERALA ADMINISTRATIVE TRIBUNA DATED 31.01.2022.

Exhibit P3 TRUE COPY OF THE JUDGMENT IN WA NO.163/2022 DATED 02.02.2022. Exhibit P4 TRUE COPY OF THE JUDGMENT IN WP(C)NO.2622/2022 DATED 18.02.2022 Exhibit P5 TRUE COPY OF PROVISIONAL LIST OF SERVICE CANDIDATES WITH A COVERING LETTER NO.DME/4081/2020-B2 DATED 04/02/2022 Exhibit P6 TRUE COPY OF STATE RANK LIST OF SERVICE CANDIDATES FOR ADMISSION TO DNB (POST MBBS) COURSE DATED 05/03/2022 Exhibit P7 TRUE COPY OF THE NAMES OF CANDIDATES INDICATING REGULARIZATION OF SERVICE VIDE G O.(MS)NO.223/2018/H&FWD Exhibit P8 TRUE COPY OF DECLARATION OF PROBATION OF ONE DR. MUZAMML HANEEF VIDE ORDER NO.F5/1795/2020 DME DATED 03.06.2020. Exhibit P9 TRUE COPY OF FINAL LIST OF SERVICE CANDIDATES FOR ADMISSION TO PG MEMORIAL COURSE WITH A COVERING LETTER DATED 21/04/2022.

Exhibit P10 TRUE COPY OF THE JUDGMENT IN WRIT PETITION(C)NO.7502/2022 DATED 22.04.2022.

Exhibit P11 TRUE COPY OF THE ALLOTMENT LIST 0F MEDICAL EDUCATION CANDIDATES FOR ADMISSION TO PG MEMORIAL COURSE WITH A COVERING LETTER DATED 23/04/2022. Exhibit P12 RANK LIST OF MEDICAL EDUCATION SERVICE CANDIDATES FOR ADMISSION TO DNB POST (MBBS) COURSE UNDER SERVICE QUOTA W.P.(C) Nos.14906 and 20300 of 2022

PULISHED ON 25.04.2022.

Exhibit P13 LIST OF VACANT SEATS FOR DNB POST (MBBS) COURSE UNDER SERVICE QUOTA IN VARIOUS SUBJECTS PUBLISHED ON 25.04.2022.

Exhibit P14 NOTIFICATION DATED 25/04/2022 CALLING THE CANDIDATES FOR REGISTER OPTIONS TO ANY OF THE SPECIALITY SUBJECT AGAINST IRRESPECTIVE OF THE PRESENT VACANCY STATUS.

Exhibit P15 TRUE COPY OF THE NOTIFICATION DATED 29/04/2022 ISSUED BY THE 3RD RESPONDENT, COMMISSION OF ENTRANCE EXAMINATION ALONG WITH THE PROVISIONAL ALLOTMENT LIST OF CANDIDATES.

Exhibit P16 TRUE COPY OF THE COMPLAINT BY E-MAIL DATED 30/04/2022 SUBMITTED BEFORE THE 3RD RESPONDENT.

Exhibit P17 TRUE COPY OF THE NOTIFICATION DATED 05/05/2022 ISSUED BY THE 3RD RESPONDENT, COMMISSION OF ENTRANCE EXAMINATION ALONG WITH THE ALLOTMENT LIST OF CANDIDATES.

RESPONDENT EXHIBITS Exhibit R5(a) TRUE COPY OF THE ORDER DATED 17.12.2021 ISSUED BY 2ND RESPONDENT DECLARING THE COMPLETION OF PROBATION OF 5TH RESPONDENT.

RESPONDENT EXHIBITS Exhibit R5(b) TRUE COPY OF THE ORDER DATED 09-01-

2022 ISSUED BY 2ND RESPONDENT DECLARING THE COMPLETION OF PROBATION OF 6TH RESPONDENT Exhibit R5(c) TRUE COPY OF THE GO(MS) NO.18/2022 H&FWD DATED 15.01.2022 ISSUED BY THE 1ST RESPONDENT ALONG WITH THE RELEVANT PAGES OF PROSPECTUS FOR ADMISSION TO MEDICAL POST GRADUATE DEGREE COURSES, 2021-2022 Exhibit R5(d) TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION ISSUED BY THE 3RD RESPONDENT BY INVITING APPLICATION FOR W.P.(C) Nos.14906 and 20300 of 2022

ADMISSION TO MEDICAL POSTGRADUATE DEGREE COURSES 2021-2022 DATED 15-01-

Exhibit R5(e) THE TRUE COPY OF THE OBJECTION SUBMITTED BY THE 5TH RESPONDENT DATED 12/03/2022 SUBMITTED BY THE 5TH RESPONDENT DATED 12.03.2022 SUBMITTED BEFORE THE 2ND RESPONDENT.

Exhibit R5(f) THE TRUE COPY OF THE OBJECTION SUBMITTED BY THE 6TH RESPONDENT DATED 04.03.2022 SUBMITTED BEFORE THE 2ND RESPONDENT.

Exhibit R5(g) TRUE COPY OF THE JUDGEMENT IN W.P.(C) NO.9071 OF 2022 DATED 23.03.2022 Exhibit R4(A) TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM DATED 05-06-2020 DECLARING PROBATION OF THE 4TH RESPONDENT W.E.F. 16-01-2016. Exhibit R4(B) TRUE COPY OF THE ADMISSION SLIP DATED 24-04-2022.

W.P.(C) Nos.14906 and 20300 of 2022

APPENDIX OF WP(C) 20300/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE INTERIM ORDER IN WP(C) NO. 2622 /2022 DATED 27.01.2022. Exhibit P2 TRUE COPY OF THE JUDGMENT IN WA NO.163 /2022 DATED 02.02.2022.

Exhibit P3 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

2622/2022 DATED 18.02.2022.

Exhibit P4 TRUE COPY OF THE JUDGMENT IN WRIT PETITION(C) NO. 7502/2022 DATED 22.04.2022 .

Exhibit P5 TRUE COPY OF THE INTERIM ORDER IN OP (KAT)NO. 143/2022 DATED 07.06.2022. Exhibit P6 TRUE COPY OF THE MARK LIST. Exhibit P7 TRUE COPY OF THE COMMUNICATION NO.DME/3/2022 -B2 DATED 11.06.2022 ISSUED BY THE DIRECTOR OF MEDICAL EDUCATION.

Exhibit P8 TRUE COPY OF THE APPLICATION DATED 15.06.2022 SUBMITTED TO THE PRINCIPAL GOVERNMENT MEDICAL COLLEGE ERNAKULAM. Exhibit P9 TRUE COPY OF THE ORDER IN OP (KAT) NO.

143/2022 DATED 24.08.2022.

Exhibit P9(A) TRUE COPY OF NOTIFICATION DATED 09.08.2022 ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATIONS.

Exhibit P10 TRUE COPY OF APPLICATION DATED 16.08.2022 FOR ADMISSION TO PG MEDICAL COURSE IN GENERAL SURGERY SUBMITTED THROUGH PROPER CHANNEL.

Exhibit P11 DISTRIBUTION OF SERVICE QUOTA SEATS IN GOVT. MEDICAL COLLEGES - 2022 -

MEDICAL P G ADMISSION PUBLISHED AS

OF THE PROSPECTUS.

Exhibit P12 TRUE COPY OF THE DISTRIBUTION OF SERVICE SEATS IN GOVT. MEDICAL COLLEGES - 2016 - MEDICAL P G ADMISSION PUBLISHED AS ANNEXURE - IV W.P.(C) Nos.14906 and 20300 of 2022

IN PAGE NO. 38 OF THE PROSPECTUS. Exhibit P13 TRUE COPY OF THE STATE QUOTA SEATS IN GOVT. MEDICAL COLLEGES - 2021 -

MEDICAL P G ADMISSION PUBLISHED AS ANNEXURE - III OF THE PROSPECTUS. Exhibit P13(A) TRUE COPY OF THE DISTRIBUTION OF IN SERVICE QUOTA SEATS UNDER DIRECTOR OF MEDICAL EDUCATION PUBLISHED LATER. Exhibit P14 TRUE COPY OF THE G.O.(RT) NO.809/2016/ H & FWD DATED 5.3.2016 PERMITTING THE CHANGE IN ALLOTMENT OF SEATS.

Exhibit P15 TRUE COPY OF THE ANNEXURE III, PAGE NO.38 OF THE PROSPECTUS FOR 2016 SHOWING NO SEATS ARE ALLOTTED FOR MD PSYCHIATRIC AND MD BIOCHEMISTRY. Exhibit P16 TRUE COPY OF NOTIFICATION DATED 10.10.2022 ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATIONS IN CONSENSUS WITH G.O.(RT)NO.2403/2022/ H & FWD. DATED 1.10.2022 INVITING THE SERVICE CANDIDATES HAVING THE MDIFIED UPPERAGE LIMIT TO REGISTER FRESH APPLICATIONS. RESPONDENT EXHIBITS Exhibit R2(a) True copy of the relevant portion of the prospectus for Medical PG courses for the year 2016