- (1.) Leave granted.
(2.) These appeals arise out of a judgment and order dated 30th March 2011 passed by the High Court of Kerala at Ernakulam in Writ Petitions No.1014 of 2009 and 2610 of 2010 filed by the respondents whereby the High Court has allowed the said petitions with the direction that selection of in- service medical officers for post-graduate medical education under Section 5(4) of the Kerala Medical Officers' Admission to Postgraduate Courses under Service Quota Act, 2008 (Kerala Act 29 of 2008), shall be made strictly on the basis of inter se seniority of the candidates who have taken the common entrance test for post-graduate medical education and have obtained the minimum eligibility bench mark in that test in terms of the Regulations framed by the Medical Council of India.
(3.) Forty percent of the seats available in the State of Kerala for post- graduate medical admission are reserved for in-service doctors serving in the Health Service Department, Medical College lecturers and doctors serving in the Employees State Insurance Department of the State. As per the practice prevalent before the enactment of the impugned legislation admissions against such reserved seats were made on the basis of seniority of in-service candidates in each category. Post Graduate Medical Education Regulations of Medical Council of India, 2000, however, made it mandatory for all candidates seeking admission to post-graduate medical courses to appear for a common entrance examination. The Regulations, inter-alia, provide that candidates who appears in the common entrance examination and secure 50% in the case of general category candidates and 40% in the case of SC/ST candidates alone shall be qualified for such admission. Consequently, even in-service candidates had to appear and qualify in the common entrance examination. Representations appear to have been received by the Government from many quarters pointing out that in-service candidates who were working around the clock for the benefit of the public even in remote rural areas could hardly find time to update their knowledge and compete with the general merit candidates so as to score the required 50% marks in the common entrance examination and to qualify for admission to any post-graduate course. Considering these representations, the Government decided to bring a legislation to overcome the difficulties faced by in-service candidates in the matter of getting admission to post- graduate courses. The legislation envisaged a quota for medical officers in the service of the State Government on such terms and conditions as may be prescribed. More importantly, in terms of Section 3 of Act No.29 of 2008 selection of medical officers to the post-graduate courses under the service quota was to be made by a Selection Committee called the Post Graduate Course Medical Selection Committee constituted under Section 4 of the said Act. Section 5 of the Act empowered the Government to set apart seats not exceeding 40% of the total seats available in the State quota for any academic year for selection of medical officers under 'service quota' for admission to post-graduate medical courses in medical colleges of the State. Sub-section (2) of Section 5 provided that the academic qualifications for admission to the post-graduate courses shall be an MBBS degree with a minimum of 50% marks besides other qualifications that may be prescribed. Sub-section (4) of Section 5 required the Post-graduate Selection Committee to finalise the selection list directly based on the seniority of the in-service medical officers and following such other criteria as may be prescribed. Section 6 provided for grant of weightage for 'rural area service' or 'difficult rural area service' as the case may be, in the matter of selection of the candidates for admission. Sections 3, 4, 5 and 6 to the extent they are relevant may be re-produced at this stage: "3. Selection of Medical Officers for admission to Postgraduate Course Under the Service. Quota.- Notwithstanding anything contained in the Indian Medical Council Act, 1956 (Central Act 102 of 1956) or any rule or regulation issued thereunder or in any judgment, decree or order of any court or authority, the selection of Medical Officers for admission to Postgraduate Course of study in the State under the service quota shall be made only under the provisions of this Act. 4. Constitution of Post Graduate Course Medical Selection Committee - (1) The Government may constitute a Postgraduate Course Selection Committee for the purpose of selection of Medical Officers under the service quota with the following ex-officio members, namely:- (a) The Secretary to Government, Health and Family Welfare Department, Government of Kerala; (b) The Director of Medical Education; (c) The Director Health Services; (d) The Director of Insurance Medical Services; (e) The Joint Director of Medical Education (M); (f) The Joint Director of Medical Education (G). (2) The Secretary to Government, Health and Family Welfare Department shall be the Chairman and the Director of Medical Education shall be the Convenor of the Committee. (3) The Committee shall discharge its functions in such manner as may be prescribed. 5. Procedure for selection. - (1) The Government may set apart seats not exceeding forty percent of the total seats available to state quota in an academic year, for selection of Medical Officers under service quota considering their service under the Government for admission to Post Graduate Medical Courses in the Medical Colleges of the State in such manner as may be prescribed. (2) The academic qualification for admission to the Post Graduate Course shall be M.B.B.S. degree with minimum fifty percent marks and the other qualifications shall be such as may be prescribed. (3) The details of eligibility for admission, the duration of courses, allotment, fee to be paid, reservations of seats and such other details shall be published every year in the prospectus before the commencement of admission. (4) The Postgraduate Course Selection Committee shall finalise the selection list strictly based on the seniority in service of the Medical Officers and following such other criteria as may be prescribed. (5) The selection list finalised under sub-section (4) shall be published by the Post Graduate Selection Committee for the information of the applicants. 6. Weightage for rural service. - Every Medical Officer who has 'rural area service' or 'difficult rural area service' as the case may be, in the State shall be given weightage in selection in such manner as may be prescribed.";