Sajil vs State of Kerala

C.N. Ramachandran Nair, J.—The writ Petitioners in these connected W.P.(C)s. are medical graduates who participated in the Entrance examination conducted by the Commissioner for Entrance Examinations for admissions to Post-graduate Medical Degree/Diploma courses 2011 and have obtained high ranks making them eligible for admission to the courses applied for. The Entrance Examination was conducted on 9.2.2011 based on the prospectus issued on 4.1.2011. Rank list was also prepared on 14.2.2011 based on the marks obtained by the candidates in the Entrance examination. However, after preparation of the rank list, the Director of Medical Education issued an amendment to the prospectus on 22.2.2011 providing weight age marks to Government Medical Officers who participated in the Entrance Examination which is an addition at the rate of 10% of the marks obtained in the Entrance Examination for every year of service in difficult rural areas subject to a maximum of 30%. As a result of the weight age marks given to Medical Officers, the Petitioners who secured high ranks in the Entrance Examination conducted for admissions in the open merit quota went down in the list leaving no chance to them for admissions. For example, the candidate who secured Rank No. 1257 in the Entrance Examination, by virtue of the weight age of 30% marks eligible to him for the 3 years service rendered in difficult rural areas as provided in the amendment issued to the prospectus after preparation of the rank list, goes to Rank No. 24. Similarly another candidate who secured rank No. 989 by virtue of two years'' of service he had in difficult areas goes to rank No. 22. The weight age marks now granted to one section of candidates who participated in the Entrance Examination has therefore completely upset the rank list prepared based on the Entrance Examination thereby denying opportunity for admission to Petitioners who but for the weight age marks given to some others based on the amendment to the prospectus later issued, would have got admissions. The Petitioners have, therefore, filed these Writ Petitions challenging the amendment made to the prospectus and the weight age marks given to certain candidates subsequent to the Entrance Examination and preparation of rank list. The learned Single Judge admitted the Writ Petitions and directed admissions to be given based on the original prospectus i.e. without awarding any weight age mark to certain candidates based on the amendment introduced to the prospectus after the examination and preparation of rank list. When Writ Appeals filed against interim orders came before us, we decided to hear the matter and dispose of the same finally. We have heard various counsel appearing for the Petitioners, counsel appearing for the Respondents, the Government Pleader and also Standing Counsel appearing for Medical Council of India. The annexures referred to in this judgment are those produced in W.P.(C) No. 9638/2011.

Ext.P1 is the prospectus issued by the Director of Medical Education wherein it is stated that altogether 430 seats in P.G. Degree courses and 160 seats in Diploma courses are available for admission in the Government Medical Colleges in the State. 50% of the seats are reserved for allotment under the All India quota and, therefore, only 215 seats for P.G. Degree courses and 80 seats for P.G. Diploma courses are available for admission by the Directorate of Medical Education. Reservations are provided to various categories from out of the 50% available for admissions to be given by the Directorate. After providing 10% for SC and ST, 9% for OBC and 3% for physically handicapped, 40% of the remaining seats are reserved for in service candidates i.e., for Medical Officers serving the Government Hospitals in the State. The balance of around 38%, i.e., 83 seats only are available for admissions to Post Graduate degree courses in the open merit quota for general candidates in the State. While the regulations of the Medical Council of India prescribe method for admissions to candidates from open merit quota which also provide guidelines on preferences and weight ages to Medical Officers, the State has made a separate legislation called "The Kerala Medical Officers'' Admission to Post-graduate Courses under Service Quota Act, 2008" which in Section 5 provides reservation to it''s Medical Officers for admission to Post-graduate medical courses upto 40% of the seats available to the State. Section 6 of the said Act provides weight age marks for difficult rural area service. However, the special statute made by the State providing quota for Medical Officers and weight age for service in difficult rural areas for admission to Post-graduate Medical courses does not provide for any Entrance Examination for their selection. A Division Bench of this Court in Mohammed Riaz Vs. State of Kerala, held that Government Medical Officers also have to undergo very same Entrance Examination for admission to Postgraduate medical courses. Even though this judgment was rendered with reference to admissions made in 2009 and 2010, the very same Division Bench of this Court in W.P.(C) No. 8786/2011 held that the above reported judgment applies for admissions to Postgraduate Medical courses commencing in 2011. The Supreme Court substantially confirmed this judgment with a rider that those service candidates who wrote the entrance examination conducted need not write the examination yet to be conducted for filling up the balance seats in service quota. By virtue of the above judgments, the Directorate of Medical Education and Commissioner of Entrance Examination are required to conduct another entrance examination for Medical Officers for admissions to Post-graduate Medical courses in the quota reserved for them. So much so, the admissions to be given from the rank list prepared in the Entrance Examination conducted based on Ext.P1 prospectus has to be limited to the seats in the open merit quota including the candidates covered by other reservations. Both sides have clarified to us that out of the total 215 seats available for Post-graduate Degree courses, 67 seats are reserved for Medical Officers of the State for which examination has to be now separately conducted based on the judgments above referred and after setting apart the seats reserved for them and to other categories, the seats available in the open general merit quota are only 83. However, what requires special mention is that neither under the State Act providing for reservation for admissions to Medical Officers to Post-graduate Medical courses nor under Ext.P1 prospectus they were required or entitled to write the common Entrance Examination for admissions to the quota reserved for them. In fact, only few of the Medical Officers seeking admission for Post-graduate Medical courses participated in the common Entrance Examination conducted by the Commissioner for admissions in the open merit quota. Ext.P1 also did not provide for any weight age marks to Medical Officers participating in the common Entrance Examination. However, one of the Medical Officers filed a representation to the Government to provide for weight age mark for difficult rural area service and when the Government did not consider the same, a Writ Petition was filed before this Court and a learned Single Judge vide Ext.P6 judgment dated 2.2.2011 directed the Government to consider the representation to provide for weight age mark. Based on the representation, the Government issued Ext.P5 on 22.2.2011 providing grant of weight age mark to Medical Officers in the following lines:

Weight age will be given to candidates, who are in Government Service on regular basis and appearing for common Entrance Examination, who have done Government Service in Remote or Difficult Rural areas after the M.B.B.S. course as per P.G. Medical Education Regulation, 2009 Part IE of Medical Council of India. Weight age shall be given as an incentive at the rate of 10% of the marks obtained in the Entrance Examination, for each year in service in Remote or Difficult Rural areas upto the maximum of 30% of the marks obtained.

As already stated, the above addition was made to the prospectus only after conduct of examination based on Ext.P1 prospectus and after preparation of rank list. The weight age mark to which some of the Medical Officers who participated in the Entrance Examination are eligible, has completely upset the rank list prepared based on the Entrance examination. The first contention raised by the Petitioners is that the prospectus cannot be subsequently amended to provide weight age mark to a category of candidates who participated in the Entrance Examination. Their further case is that the weight age mark applies only while considering admission in the seats reserved for Medical Officers and it cannot be granted to any candidate competing for admission in the general open merit quota to which the Petitioners belong. The contention raised by Respondents is that omissions in the prospectus could be made up through amendment that could be notified after conduct of the entrance examination and preparation of the rank list. On merit the Respondents have contended that Regulations prescribed by the Medical Council of India apply for Post Graduate Medical admissions to all categories and the weight age marks provided under the amendment notification is in terms of the Medical Council Regulations, and so much so, there is no scope for interference. The Petitioners have questioned the rationality of weight age marks up to 30% provided to Medical Officers, and in support of their contentions they have relied on the decisions of the Supreme Court in Dr. Dinesh Kumar and Others (II) Vs. Motilal Nehru Medical College, Allahabad and Others, reported in and in Dr. Snehelata Patnaik and Others Vs. State of Orissa and Others, . Learned Counsel appearing for the Respondents including the Government Pleader have relied on the decision of the Supreme Court in The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, , reported in and contended that preference through weight age marks in entrance examination for admission to Post Graduate courses is permissible for in service candidates. The contention raised by the learned Counsel appearing for the Respondents including the learned Government Pleader and learned Standing Counsel for the M.C.I. is that there is an omission in Ext.P1 prospectus in as much as the amendment made by the Medical Council of India on 17.11.2009 to the "Post Graduate Medical Education Regulations, 2000" which provides for weight age marks to in service candidates, was not incorporated in the prospectus. The above amendment made by the Medical Council in the Post Graduate Medical Education Regulations, is as follows:

Further provided that in determining the merit and the entrance test for postgraduate admission weight age in the marks may be given as an incentive at the rate of 10% of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30% of the marks obtained.

It is seen from the amendment introduced to the prospectus by Ext.P5 extracted in paragraph 2 above that the same is nothing but copy of the above referred amended provisions of the M.C.I. Regulations on Post Graduate admissions. Even though the learned Counsel for the Petitioners relying on the decisions of the Supreme Court above cited contended that weight age marks provided at 10% for each year of remote area service upto a maximum of 30% of the marks obtained in the entrance examination is arbitrary and excessive, we do not think there is any need for us to consider the same because of the view taken by us as stated below.

It is settled position particularly by virtue of the judgment of the Supreme Court in the case of Gopal D. Tirthani and other cited above that weight age can be given to medical officers serving in rural areas for admission to Post Graduate medical courses. The Supreme Court has also held that common entrance test should be conducted for candidates seeking admissions in the open general/merit quota and also in the quota earmarked for medical officers. In this case, admittedly, the entrance examination conducted was not intended to cover medical officers for whom 67 seats are separately reserved. In fact, the need to conduct entrance examination for service candidates also has arisen only because of the above referred judgments of this Court and the Supreme Court. Therefore, what is seen is that a section of the medical officers also participated along with other candidates in the entrance examination for admissions in the open merit quota. So long as they are qualified medical graduates they are entitled to compete with other candidates for admission in the open merit quota, no matter they are also entitled to be considered in the seats reserved for medical officers. The State Act above referred is exhaustive with regard to quota reservation for service candidates, entitlement for weight age marks for difficult/rural area service and all matters connected with Post Graduate admissions to be given to medical officers of the State. The Petitioners also have not raised any objection against the reservation up to 40% Post Graduate seats for in service candidates u/s 5 of the Act and the provision for weight age marks provided u/s 6 because the statutory provisions apply for selection of candidates from among medical officers of the State that too in the quota of seats reserved for them. Ext.P5 amendment to the prospectus in conformity with M.C.I. Post Graduate Education Regulations is made in exercise of powers conferred u/s 6 of the State Act which apply for admissions to the seats reserved for service candidates u/s 5 of the Act. We are therefore of the view that in the examination conducted for admission in the open merit quota, the scheme of weight age marks to medical officers does not apply at all. In other words, the weight age marks provided in the above stated amended provisions of the Post Graduate Medical Education Regulations of the M.C.I. incorporated in the amended prospectus (Ext.P5) for difficult/rural area service apply only while considering admissions to the seats reserved for medical officers of the State. So much so the amendment made by Ext.P5 has no relevance or application while considering admissions of candidates seeking admissions in the open merit quota. Of course, the Medical Officers in the Government Service are also entitled to compete with other candidates for admission in the open merit quota but without claiming any weight age marks. Therefore weight age marks for difficult/rural area service cannot be awarded to medical officers seeking admissions in the open merit quota. However they can claim the benefit when they claim admissions in the seats reserved for them. As already stated, neither the MCI Post Graduate Education Regulations nor the State Act referred above provide for any weight age marks to medical officers when they compete with general candidates for admissions to the seats to be filled up from open merit quota. The Petitioners have contended that after reserving 67 seats out of 215 in the Post Graduate degree courses for admission to medical officers from Government Service if weight age is also given for rural / difficult area service to such of the candidates from Government service who participated in the entrance examination for admissions in the open merit quota, the same will work out virtually 100% reservation excluding admissions in the open merit quota altogether. We are in complete agreement with this contention because what is seen from the two illustrations above that by virtue of 10 to 30% marks added to the marks obtained by the medical officers, who wrote the entrance examination along with other candidates, they have gone above all candidates who secured high marks in the entrance examination. Neither the MCI Post Graduate Education Regulations nor the provisions of the Kerala statute visualise such a situation of completely excluding meritorious candidates seeking admissions in the open merit quota.

We therefore hold that once reservation for admission to Post Graduate courses is provided to medical officers, the weight age for difficult/rural area service should be considered while evaluating inter se merit of medical officers for admission. In other words, medical officers seeking admission in the seats available in the open merit quota should be treated at par with general candidates. However, weight age marks could be granted to eligible candidates while considering admission for the seats exclusively reserved for medical officers. We make it clear that this observation of ours should not be taken as our approval for the unusual percentage of 10 to 30% weight age marks provided for difficult/rural area service to eligible candidates. We are told that Kerala has as many as 165 areas declared (difficult/rural area) and if weight age as provided in Ext.P5 is given, probably there is no chance for medical officers serving in urban areas to get admission. Therefore, it will be open to the in service candidates to challenge the percentage of weight age marks if the same is arbitrary or unnecessary or works hardship for them. Leaving this open to them, we hold that the weight age marks has no application for admission to Post Graduate degree or diploma courses to the seats available in the open merit quota for which examination was conducted by Ext.P1 prospectus. We declare this position and direct the official Respondents to give admission as per the original rank list, i.e., without awarding any weight age marks to any of the candidates participated in the entrance examinations for admissions in the merit quota.

These W.P.(C)s are allowed as above.