IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20570 of 2010(U)
1. DR.SANDEEP BANSAL, AGED 32 YEARS,
... Petitioner
2. DR.RAHUL YADAV, AGED 29 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF MEDICAL EDUCATION,
3. THE COMMISSIONER FOR ENTRANCE
For Petitioner :SRI.H.B.SHENOY
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :05/08/2010
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).Nos.20570, 21086, 21357, 21494,
21612, 23600 & 24502 of 2010
==================
Dated this the 5th day of August, 2010
J U D G M E N T
In all these writ petitions, the petitioners are doctors who aspire
for admission to Super Speciality Post Graduate courses. Except in
W.P.(C).No.24502/2010, the petitioners are challenging certain
clauses of the prospectus issued for admission to Post Graduate
courses in the Medical Colleges in Kerala, this year.
2. The clauses under challenge are III (iii), (iv) and (v), which
read thus;
“III. Eligibility for admission:
(i) ......
xxx xxx xxx xxx
(iii) Has done atleast one year compulsory rural service/Senior
residency/Government service in any of the Government Medical
Colleges/Government Hospitals in Kerala.
(iv) In case sufficient number of candidates fulfilling the
conditions as per (iii) above is not available, candidates who are
otherwise qualified will also be considered, based on the merit in
the entrance test.
(v) Preference shall be given to the candidates, who had done
MBBS or MD/MS from the Medical Colleges in Kerala, for
preparation of rank list. In case, sufficient number of candidates in
the above category is not available for admission for any reason,
candidates from other states will be considered for the balance
seats, based on the merit in the entrance test.”
The petitioners challenge these clauses on various grounds. But it
remains a fact that they have chosen to challenge these clauses after
writing the entrance examination in accordance with the prospectus,
w.p.c.20570/10 etc. 2
which they challenge, and results were published, when they found
that in view of these clauses they are not likely to get admission to
the courses. Since, prima facie, I was of opinion that such challenge
cannot be entertained at this stage, since they had not challenged the
prospectus at the inception, all these matters were posted for hearing
on the question of maintainability of these writ petitions on that
ground. Admittedly, all the petitioners wrote the written test in
accordance with the prospectus. Results were also published. It is
thereafter, they have chosen to challenge the clauses in the
prospectus on the ground that the same are against the Supreme
Court decisions on the subject. The learned counsel for the petitioner
in W.P.(C).No.23600/2010 would take a contention that insofar as the
clauses are against the statutory regulations issued by the Medical
Council of India, the clauses themselves are void ab initio and,
therefore, even though they have not challenged the same at the
inception, they are entitled to challenge the same even after writing
the entrance examination and finding that they were not likely to be
admitted in accordance with the results of the entrance examination.
He relies on the Supreme Court in Nar Singh Pal v. Union of India (AIR
2000 SC 1401), wherein a person who accepted compensation for his
termination, turned around later on challenged the termination itself,
which the Supreme Court found is permissible, insofar as since the
w.p.c.20570/10 etc. 3
termination of service violated his fundamental rights, he cannot be
held to have waived the fundamental rights. On the other hand, the
learned Government Pleader appearing for the State would contend
that they are estopped from challenging the provisions of the
prospectus in view of the various decisions of the Supreme Court
holding that a person who has chosen to participate in a selection
process cannot later on turn around and challenge the selection
process itself when he found that he has not succeeded in that
selection process. The learned Government Pleader relies on the
decisions of Supreme Court in Dhananjay Malik and others v. State of
Uttaranchal and others [(2008) 4 SCC 171], Siraj v. High Court of
Kerala [2006 (2) KLT 923 (SC)] and a decision of my mine in Ajith
George v. State of Kerala [2006 (3) KLT 743].
3. I have considered the rival contentions in detail.
4. The authorities cited by the learned Government Pleader
are more than sufficient to hold that the petitioners having undergone
the selection process on the basis of the prospectus cannot now
challenge the basis of the selection process, viz., the prospectus, when
they found that in the selection process they are not likely to succeed.
But I have to consider the contention of the petitioner in W.P.(C).
No.23600/2010 that insofar as the prospectus is violative of the
provisions of the regulations of the Medical Council, the same is void
w.p.c.20570/10 etc. 4
ab initio and therefore, the petitioner therein can challenge the same
at any time. I am of opinion that that position is also covered by the
decision in Dhananjay Malik’s case (supra), wherein in paragraphs 7
to 9, the Supreme Court has held thus:
“7. It is not disputed that the respondent-writ petitioners herein
participated in the process of selection knowing fully well that the
educational qualification was clearly indicated in the advertisement itself
as BPE or graduate with diploma in Physical Education. Having
unsuccessfully participated in the process of selection without any demur
they are estopped from challenging the selection criterion inter alia that
the advertisement and selection with regard to requisite educational
qualifications were contrary to the Rules.
8. In Madan Lal v. State of J&K1 this Court pointed out that
when the petitioners appeared at the oral interview conducted by the
members concerned of the Commission who interviewed the petitioners
as well as the contesting respondents concerned, the petitioners took a
chance to get themselves selected at the said oral interview. Therefore,
only because they did not find themselves to have emerged successful as
a result of their combined performance both at written test and oral
interview, they have filed writ petitions. This Court further pointed out
that if a candidate takes a calculated chance and appears at the
interview, then, only because the result of the interview is not palatable
to him, he cannot turn round and subsequently contend that the process
of interview was unfair or the Selection Committee was not properly
constituted.
9. In the present case, as already pointed out, the respondent-
writ petitioners herein participated in the selection process without any
demur; they are estopped from complaining that the selection process
was not in accordance with the Rules. If they think that the
advertisement and selection process were not in accordance with the
Rules they could have challenged the advertisement and selection process
without participating in the selection process. This has not been done.
(underlining supplied)
Therein the Supreme Court has gone to the extent of holding that even
if the notification inviting applications is contrary to the rules, unless
that notification itself is challenged at the inception, a person who has
undergone the selection process on the basis of the notification, cannot
w.p.c.20570/10 etc. 5
later on turn around and challenge the selection process itself. I am of
opinion that despite the protestation of the learned counsel for the
petitioner that the facts of this case are not similar to those of the
Medical Council Regulations, I do not find any difference. The decision
in Nar Singh Pal’s case (supra) cited by the learned counsel for the
petitioner is not on the basis of similar facts at all. That is a case where
a person’s services have been terminated, which cannot be equated
with the admission process in medical colleges. Therefore, in view of
the Supreme Court decision cited by the learned Government Pleader,
I am of opinion that the petitioners cannot be permitted to challenge
the provisions of the prospectus after having chosen to participate in
the selection process in accordance with the provisions of the
prospectus itself and finding that they are out of the fray in view of the
the impugned clauses in the prospectus. In W.P.(C).No.24502/2010
the petitioner does not challenge the provisions of the prospectus as
such.
5. Subsequent to the selection process the Government chose
to amend the same prospectus to reduce the rigour of the clauses
which are under challenge in these writ petitions. The petitioner in
W.P.(C).No.24502/2010 challenges the amended prospectus. He would
contend that although he has not challenged the prospectus as it
existed at the time of issue of the prospectus, he is not estopped from
w.p.c.20570/10 etc. 6
challenging the modified prospectus as it obtains now, is his
contention. I am of opinion that the petitioner was not eligible to be
selected on the basis of the original prospectus itself. Then there is no
point in challenging the less rigorous modified prospectus and,
therefore, the petitioner in W.P.(C).No.24502/2010 does not stand on
a differing footing. In the above circumstances, these writ petitions are
dismissed.
6. However, I make it clear that if the petitioners are eligible
for admission otherwise, the dismissal of these writ petitions would not
stand in their way of being admitted going by the subsequent amended
prospectus as per Ext.P5 Government order in W.P.(C).No.
24502/2010.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge