Observing that the States have the power to provide quota for in-service candidates in PG-Super Speciality medical courses, the High Court of Kerala has directed that the 40 % in-service quota under the Kerala Medical Officers Postgraduate and Service Quota Act, 2008 should be given effect during the counselling for PG-Super Speciality medical seats.
A division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly directed the State Government to prepare the list of candidates eligible for the 40% in-service quota and directed the Director General of Health Services and the National Medical Commission to implement the same.
The bench issued the directions while considering a writ appeal filed by a group of candidates against the refusal of a single bench to pass an interim order to implement the in-service quota in the counselling, which was scheduled to take place on October 8.
Disposing of the writ appeal on the day before the counselling date, the division bench directed the DGHS to fix a date of counselling insofar as in-service candidates in Kerala for admission to Super Speciality courses are concerned.
Appearing for the appellants, Advocate George Varghese Perumpallikuttiyil submitted that the Supreme Court has upheld the power of the states to provide in-service quota in medical admissions in the recent Constitution Bench decision in Tamil Nadu Medical Officers Association and Others v. Union of India.
The counsel also pointed out that the State Government had been providing in-service quota under the 2008 Act from 2009-10 until the Central Government directed to suspend it as per a notification issued in 2017. The Central Government issued the said notification following the SC decision in State of UP v. Dinesh Singh Johal reported in (2016) 9 SCC 749, which doubted the validity of reservation for in-service candidates.
The division bench noted that as the Supreme Court has now upheld in-service quota in the Tamil Nadu Medical Officers Association case, the authorities are bound to implement it.
"Now that the Hon'ble Supreme Court in Tamil Nadu Medical Officers Association's case (cited supra), held that the State has got authority and competence to provide reservation. Hence, we are of the considered view that directions issued by the Hon'ble Supreme Court in Tamil Nadu Medical Officers Association (cited supra) is binding on the National Medical Commission of India/State Government/Union of India", the Court observed.
The Court ordered :
Now that the Hon'ble Supreme Court has made it clear that the State has the right to provide reservation, the position as on 2009-2010 has to be restored, as per the provisions in Kerala Medical Officers Postgraduate and Service Quota Act, 2008 and the rules framed thereunder. State Government is bound to implement the judgment of the Hon'ble Supreme Court in Tamil Nadu Medical Officers Association's case (supra), giving effect to the same as per the statutory provisions and the rules. State is yet to prepare the list. Appellants and others have participated in the examination conducted for admission to the Super Speciality courses, which is the subject matter in this appeal. State Government is directed to prepare a list of eligible candidates, for admission against general and candidates against 40% reservation earmarked for in-service candidates, and accordingly, forward the list of candidates, both general as well as in-service candidates, to Director General of Health Services (respondent No.1), the authority for counselling the candidates for admission to the Super Speciality courses."
After this order of the High Court, the Medical Counseling Committee (MCC) had issued a notice deferring the counselling in which it said thus:, "keeping in view the in-service reservation issue which has arisen out of Tamil Nadu and Kerala has been decided by the competent authority to postpone the Super Speciality/ DNB SS counselling 2020 till further orders."
Case name: DR.BILU B.S. vs. UNION OF INDIACase no.: WA.No.1302 OF 2020 Coram: Chief Justice S. Manikumar and Justice Shaji P. ChalyCounsel: Adv George Varghese Perumpallikuttiyil, for the appellants, CGC Jaishankar V. Nair, Sr.GP Aravindakumar Babu, Adv Titus Mani Vettom
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