Dismissed

Dr.Vikas .R.S, v. State of Kerala

Kerala HC3 Feb 2022WP(C)/2838/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking enforcement of MCI regulation provisions granting incentive marks to in-service medical officers for general merit seats. The court held the regulation lacks substantive rights and upheld the State's separate service quota schema.

What did the court decide?

Petition dismissed; Proviso to Regulation 9(4) declared not to confer rights on service candidates for general seats.

Dr.Vikas .R.S, Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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THURSDAY, THE 3^RD DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943 WP(C) NO. 2838 OF 2022

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PETITIONER:

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DR.VIKAS .R.S, AGED 33 YEARS S/O.K. RAMACHANDRAN ACHARI, ASSISTANT SURGEON, GOVERNMENT TRIBAL SPECIALITY HOSPITAL, KOTTATHARA ATTAPPADI 678 581, RESIDING AT STAFF QUARTERS GOVERNMENT TRIBAL SPECIALITY HOSPITAL ATTAPPADI 678 581.

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BY ADVS. ELVIN PETER P.J. K.R.GANESH GOURI BALAGOPAL ABHIJITH.K.ANIRUDHAN SREELEKSHMI A.S.

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE COMMISSIONER FOR ENTRANCE EXAMINATION, HOUSING BOARD BUILDING SANTHI NAGAR, THIRUVANANTHAPURAM 695 001.

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3 DIRECTOR OF HEALTH SERVICES, DIRECTOR OF HEALTH SERVICES, VANCHIYOOR P.O. THIRUVANANTHAPURAM 695 011.

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BY SRI.P.G.PRAMOD, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[CR]

N. NAGARESH, J.

W.P.(C) No.2838 of 2022

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Dated this the 3^rd day of February, 2022

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioner, who holds MBBS Degree and who

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is working as Assistant Surgeon in the Department of Health Services under the Government of Kerala, seeks to direct respondents 1 and 2 to consider the petitioner and other in-service candidates employed as Medical Officers in the Government service for admission for Postgraduate Medical Courses for the academic year 2021-'22, in the general merit seats granting them the incentive as provided in the proviso to Regulation 9(4) of MCI Regulations, 2000 read with Ext.P4. The petitioner also seeks to declare that Ext.P7 to

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the extent it does not provide for incentive for in-service Medical Officers in the service of the Government as laid down in the proviso to Regulation 9(4) of the MCI Regulations for seeking admission in the general merit seats along with the general merit candidates is illegal and violative of Articles 14, 21 and 254 of the Constitution of India.

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The petitioner claims that he is entitled to the incentive provided under Regulation 9(4) of the Medical Council of India Postgraduate Medical Education Regulations 2000, grantable to service in remote and/or difficult areas or rural areas. The petitioner states that Regulation 9(4) of the Regulations, 2000 in its proviso, mandates that in making selection of students for Postgraduate Medical Courses, Medical Officers, who are in the service of the Government or other Public Authority, are entitled to be given weightage as an incentive up to 10% of the marks obtained for each year of service in remote and/or difficult areas or rural areas up to maximum of 30% of the marks obtained in the National Eligibility-cum-Entrance Test (NEET).

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The petitioner contends that grant of

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weightage/incentive under Regulation 9 is distinct from and in addition to the reservation for admission provided under State Quota seats for in-service candidates. Incentive under Regulation 9 would apply to all Medical Officers, who are in service of Government/Public Authority, in the matter of admission to PG Medical Courses both under All India Quota and under State Quota. In pursuance of Regulation 9 of the Regulations, 2000, the Government of Kerala issued Ext.P4 Government Order dated 12.04.2018 providing that Medical Officers who work in difficult and remote areas will receive an incentive of 10% margin obtained for each year of service in remote and difficult area and 5% of marks obtained for each year of service in rural area (not classified as difficult area) subject to a maximum of 30%.

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In the Prospectus for the academic year 2019-'20, the respondents provided 10% marks by way of incentive. Surprisingly, in Ext.P7 Prospectus for admission to the Postgraduate Medical Courses for the academic year

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2021-2022, though the Government provided for 10% quota for in-service Medical Officers, the provision for incentive to Medical Officers in the service of the Government for working in difficult rural areas and rural areas, is not included. The petitioner states that the said omission in Ext.P7 runs counter

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to the Medical Council of India Regulations and Ext.P4 Government Order. Ext.P4 Government Order has not been withdrawn or cancelled.

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The Government published a rank list of candidates aspiring for admission under in-service quota, as per Ext.P8 Circular dated 25.01.2022. In the rank list, the petitioner is included among the category of Medical Officers under the column “Yet to declare probation” at Serial No.14. The petitioner contends that on the basis of the inclusion of the petitioner in Ext.P8 rank list, he should be considered for admission for Postgraduate Medical Course granting him the benefit of the incentive provided under the Proviso to Regulation 9(4) of the Medical Council of India Postgraduate Medical Education Regulations, 2000.

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The 1^st respondent opposed the writ petition filing a Statement. The 1^st respondent stated that the contention of the petitioner that the Proviso to Regulation 9 of MCI Regulations, 2000 would still hold water and accordingly, those persons who are in service are eligible to get weightage marks in the open merit category is absolutely incorrect. In the judgment of the Hon'ble Apex Court in Tamil Nadu Medical Officers Association and others v. Union of India and others [(2021) 6 SCC 568] , it is found that MCI Regulations originate from the power under Entry 66 of List-I is having a limited scope to deal with coordination and determination of standards in higher education only. It was also observed that if it is held that Regulation 9 deals with the reservation for in-service candidates, in that case it will be ultra vires of the Indian Medical Council Act, 1956 and it will be beyond the legislative competence under Entry 66 of List-I. It was also held that Regulation 9 of MCI Regulations, 2000 to the extent tinkering with reservation provided by the State for in-service candidates is ultra vires on the ground

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that it is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India.

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In such circumstances, the extant Proviso to Regulation 9 cannot have any impact in the matter of PG Medical admissions especially in the matter of giving weightage marks to service candidates in general quota. The classification of candidates into service candidates and general quota candidates (non-service candidates) is a reasonable classification. Giving weightage marks to in-service candidates contesting for open merit quota will be setting two bench marks for identically situated persons, i.e., the candidates included in non-service category. Such an act will be undoubtedly violative of Article 14 of the Constitution of India.

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The learned counsel for the petitioner Sri. Elvin Peter argued that the proviso to Regulation 9(4) provides that in determining the merit of candidates, who were in service of Government/Public Authority, weightage in the marks may be given by the Government/Competent Authority as an

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incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas up to the maximum of 30% of the marks obtained in NEET. The remote and difficult areas shall be as defined by the State Government/Competent Authority. What is given under the Proviso is weightage in the marks as incentive. It does not amount to reservation. The admission will still be on the basis of merit. The learned counsel for the petitioner pointed out that in the judgment of the Apex Court in Sudhir N. v. State of Kerala [(2015) 2 SCC 685], it has been held that Regulation 9 of the Medical Council of India Admission to Postgraduate Courses Regulations, 2000 is the only effective and permissible base for granting admission to Post Graduate Medical Courses and Regulation 9 is a complete code in itself. In the judgment in State of Uttar Pradesh and others v. Dinesh Singh Chauhan [(2016) 9 SCC 749] , the Apex Court held that giving weightage or incentive marks to in-service candidates for Postgraduate Degree Courses does not entail in excessive or substantial departure from the rule

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of merit and equality. Incentive marks given to in-service candidates is in recognition of their service record in remote and difficult areas of the State, which marks are to be added to the marks obtained by them in NEET. In Dinesh Singh Chauhan (supra), it was held that Government Order giving reservation to in-service candidates is violative of Regulation 9 as in force.

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The Hon’ble Apex Court, however, held in Tamil Nadu Medical Officers Association and others (supra) that the Medical Council of India has no power to make any provision for reservation, more particularly, for in-service candidates. The Apex Court held that Regulation 9 does not deal with or make a provision for reservation and/or affect the legislative competence and authority of the States concerned to make reservation and/or make a special provision like the provision providing for a separate source of entry for inservice candidates seeking admission to Postgraduate Degree Courses and therefore the steps would be within their authority and legislative competence to provide for a

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separate source of entry for in-service candidates seeking admission to Postgraduate Medical Degree Courses.

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The learned counsel pointed out that the Hon’ble

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Apex Court has only observed that if it is held that Regulation 9(4) deals with reservation for in-service candidates, in that case, it will be ultra vires of the Indian Medical Council Act, 1956 and it will be beyond the legislative competence under List-I, Entry 66. The Apex Court has not held that Regulation 9(4) is ultra vires . Therefore, the respondents are bound to strictly adhere to the Proviso under Regulation 9(4) of the Regulations, 2000 and provide incentive/weightage for rural area/difficult area service.

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The learned Government Pleader Sri.P.G. Pramod argued that Ext.P4 Government Order was issued at a time when there was no separate State Quota for in-service candidates. It is true that Ext.P4 provided for grant of weightage in the marks as an incentive to Medical Officers’ service in remote and/or difficult areas up to a maximum of 30%. However, after the Government introduced a special

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quota for in-service candidates, grant of such weightage in the marks was stopped. Ext.P7 Government Order dated 15.01.2022, approving the Prospectus for admission to Medical Postgraduate Degree Courses 2021-'22, should be treated as one superseding and overriding Ext.P4 Government Order dated 12.04.2018.

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The learned Government Pleader argued that after carving out a separate quota for in-service candidates for admission to PG Medical Courses, grant of incentive as provided in Ext.P4 Government Order would amount to grant of double benefit to in-service Medical Officers, which may not be just and proper. In Ext.P5 Prospectus for the previous academic year also, weightage in the marks was given as incentive for Medical Officers for their service in difficult and remote areas. Such provision was made in Ext.P5 as there was no in-service quota in the previous year.

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The learned Government Pleader submitted that Ext.P4 was issued at a time when there was no provision for a separate quota for in-service candidates working under the

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Government. The situation is different now. A superior benefit is extended to in-service candidates by way of exclusive reservation of seats in PG Medical Courses. In the circumstances, the petitioner cannot be heard to contend that Medical Officers should be granted reservation as well as incentive. After all, neither the petitioner nor any other Medical Officer has a statutory right to claim that they should be given incentive/weightage in all circumstances. The writ petition is therefore misconceived and it is liable to be dismissed, urged the Government Pleader.

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I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.

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The claim of the petitioner for incentive/weightage in marks is based on Regulation 9(4) of the Medical Council of India Postgraduate Medical Education Regulations, 2000. Regulation 9 reads as follows:

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Procedure for selection of candidate for Postgraduate courses shall be as follows:-

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(1) There shall be a uniform entrance examination to all medical educational institutions at the Postgraduate level namely ‘National Eligibility-

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cum-Entrance Test’ for admission to postgraduate courses in each academic year and shall be conducted under the overall supervision of the Ministry of Health & Family Welfare, Government of India.

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(2) The “designated authority” to conduct the ‘National Eligibility-cum-Entrance Test’ shall be the National Board of Examination or any 17 other body/organization so designated by the Ministry of Health and Family Welfare, Government of India.

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(3) In order to be eligible for admission to Postgraduate Course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the ‘National EligibilityCum-Entrance Test for Postgraduate courses’ held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, and Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC/ST/OBC. The percentile shall be determined on the basis of highest marks secured in the All India Common merit list in National Eligibilitycum-Entrance Test for Postgraduate courses.

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Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibilitycum-Entrance Test held for any academic year for admission to Postgraduate Courses, the Central Government in consultation with Medical council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the academic year only.

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(4) The reservation of seats in Medical Colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-

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wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Postgraduate Courses from the said merit lists only.

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Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive up to 10% of the marks obtained for each year of service in remote and/or difficult areas or Rural areas up to maximum of 30% of the marks obtained in National Eligibility-cum Entrance Test. The remote and/or difficult areas or Rural areas shall be as notified by State Government/Competent authority from time to time.

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The petitioner is claiming weightage/incentive for rural/difficult area service on the basis of the Proviso to Regulation 9(4). It may be noted that Regulation 9 deals with reservation of seats in Medical Colleges/Institutions for respective categories and the Regulation makes it clear that reservation shall be as per applicable laws prevailing in States/Union Territories. The Proviso thereunder is only an exception. The Proviso states that in determining the merit of candidates, who are in service of the Government/Public Authority, weightage in the marks may be given by the Government/Competent Authority as an incentive. The

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Proviso is only an enabling provision for the Government/Public Authority to give weightage in the marks for Medical Officers for their service in remote and/or difficult areas or rural areas.

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The specific argument of the counsel for the petitioner is that though described as Proviso, it gives a right to Medical Officers in service of Government/Public Authority to get weightage in the marks for service in remote and/or difficult areas or rural areas. However, this Court is of the view that the explicit language used in the Proviso to Regulation 9(4) of the Regulations, 2000 would show that it is only an enabling provision and cannot be treated as a substantive provision giving a statutory right to Medical Officers working in the service of Government/Public Authorities.

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The Government of Kerala, in exercise of its powers under the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008, decided that there should be a separate quota for in-service

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Medical Officers working under the Government. Accordingly, in Ext.P7 Prospectus for Admission to Medical Postgraduate Degree Courses 2021-2022, provisions under Paragraphs 6-6-11 and 6-6-12 were made, which are as follows:

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6-6-11. Reservation of Seats for service candidates :

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10% of State Quota seats are earmarked for Government Service Quota candidate as per GO (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].

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Medical Education Service Quota – (MESQ). Health Service Quota – (HSQ). Insurance Medical Service Quota – (IMSQ).

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6-6-12. Eligibility for Service Quota :

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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.

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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

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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.

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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:

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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.

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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 up to a maximum of 30% of the marks obtained.

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Doctors working in approved Casualty Units in the Government Hospitals are also eligible for claiming Rural Service Quota.

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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 up to a maximum of 30% of the marks obtained.

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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.

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Ext.P7 carves out 10% of State Quota seats for admission to PG Medical Courses exclusively for in-service Medical Officers working in State Government Departments.

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In Tamil Nadu Medical Officers Association (supra), the Apex Court held that Regulation 9 of the Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the States concerned to make reservations and/or make special provisions like the provision providing for a separate source of entry for in-service candidates seeking admission to Postgraduate Degree Courses and therefore States concerned would be within their authority and legislative competence to provide for a separate source of entry for in-service candidates seeking admission to Postgraduate Degree Courses in exercise of powers under List-III, Entry 25. Therefore, it is beyond doubt that State can reserve Medical PG seats within the State Quota, for in-service candidates and also prescribe conditions for admission to those seats, without compromising merit.

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For the reasons stated above, it is declared that the Proviso under Regulation 9(4) of the Medical Council of India Postgraduate Medical Education Regulations, 2000 does not confer a right on Medical Officers under the service of Government/Public Authorities to get weightage in the marks as incentive for service in remote and/or difficult areas, for the purpose of admission to Postgraduate Medical Courses. Ext.P7 Government Order dated 15.01.2022 of the Health and Family Welfare Department, Government of Kerala and the Prospectus attached to the Government Order supersede Ext.P4 Government Order dated 12.04.2018 of the same Department.

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The writ petition is therefore without any merit and hence dismissed.

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Sd/-

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N. NAGARESH, JUDGE

aks/04.02.2022

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APPENDIX OF WP(C) 2838/2022

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PETITIONER'S EXHIBITS

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Exhibit P1	TRUE COPY OF THE M.B.B. S. DEGREE CERTIFICATE OF THE PETITIONER AWARDED FROM THE KERALA UNIVERSITY.
Exhibit P2	TRUE COPY OF THE ORDER NO. EA3- 34169/2016/DHS DATED 10.06.2016 ISSUED BY THE 3RD RESPONDENT APPOINTING THE PETITIONER AS ASSISTANT SURGEON.
Exhibit P3	TRUE COPY OF THE RELEVANT EXTRACT OF REGULATION 9 ISSUED BY THE MEDICAL COUNCIL OF INDIA POSTGRADUATE MEDICAL EDUCATION REGULATIONS, 2000.
Exhibit P4	TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT). NO. 1218/2018/H & FWD DATED 12.04.2018 ISSUED BY THE GOVERNMENT.
Exhibit P5	TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS ISSUED BY THE IST RESPONDENT FOR MAKING SELECTION OF
	POSTGRADUATE CANDIDATES TO POST GRADUATE MEDICAL COURSES FOR THE ACADEMIC YEAR 2019-2020.
Exhibit P6	TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS FOR ADMISSION TO POST GRADUATE DEGREE/DIPLOMA COURSES IN TAMIL NADU GOVERNMENT MEDICAL COLLEGE FOR THE ACADEMIC YEAR 2021- 2022.
Exhibit P7	TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS AND PUBLISHED THE SAME INTER ALIA FOR MAKING ADMISSION TO THE POST GRADUATE MEDICAL COURSES FOR THE ACADEMIC 2022 IN THE STATE OF KERALA.
Exhibit P8	TRUE COPY OF THE CIRCULAR DATED 25/01/2022 ALONG WITH THE RANKED LIST ATTACHED TO THE SAME ISSUED BY THE 3RD RESPONDENT.

Dr.Vikas .R.S, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.Vikas .R.S, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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