IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 974 of 2009()
1. DR.N. RAJENDRAN, MEDICAL OFFICER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF HEALTH SERVICES,
3. THE DIRECTOR OF MEDICAL EDUCATION,
4. THE DISTRICT MEDICAL OFFICER OF HEALTH,
5. DR. DEEPA S. NAIR,
For Petitioner :SRI.SAJEEV KUMAR K.GOPAL
For Respondent :SRI.S.GOPAKUMARAN NAIR (SR.)
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice KURIAN JOSEPH
Dated :16/06/2009
O R D E R
S.R. Bannurmath, C.J. & Kurian Joseph, J.
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W.A.No.974 of 2009
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Dated this, the 16th day of June, 2009
JUDGMENT
S.R.Bannurmath, C.J.
Aggrieved by the order dated 6th April, 2009 rejecting
the writ petition, the unsuccessful writ petitioner has filed this
appeal.
2. The brief facts of the case are as follows.- The
petitioner-appellant is working presently as Medical Officer, Public
Health Centre, Moodadi, Kozhikode, having entered service on
2.5.1996 as Assistant Surgeon. According to the petitioner, while
he was working as District Medical Officer in the District Medical
Office, Kannur, in the year 2000 he was sent on deputation to
the World Health Organization (WHO) as Consultant under the
“Revised National Tuberculosis Control Programme” (RNTCP) and
nearly for eight years he worked as such. According to the
petitioner, while he was working as a Consultant, he had worked
in all regions, comprised in 14 districts, of the State for
supervision, monitoring and surveillance of RNTCP.
– 2 –
3. As per the case of the petitioner, when the 3rd
respondent – Director of Medical Education, Thiruvananthapuram
– invited applications from the doctors of Health Department for
the admission to Post Graduate Course under Service quota, the
petitioner filed an application with a request to include his name
in the TB Quota for PG Medical admission. It is stated that when
the select list was published, the name of the petitioner was not
found in the list Exhibit P7 and as such he once again submitted a
representation to consider his service in RNTCP, Kerala State.
According to him, if the tuberculosis service rendered by the
petitioner in RNTCP is taken into consideration, he would stand
ranked No.1 as he has put more service than respondent No.5,
who was ranked 1st in Exhibit P7. According to the petitioner, as
the same was not considered he was constrained to approach this
Court in the impugned writ petition.
4. The learned Single Judge, after considering in
detail the arguments on both the sides, the scheme of RNTCP and
the Prospectus issued for the Post Graduate Course, 2009,
– 3 –
rejected the writ petition holding that the petitioner was not
entitled for being considered under the Tuberculosis Service
Quota. Hence the Writ Appeal.
5. Taking us through the Prospectus and the RNTCP
guidelines, it was vehemently contended on behalf of the
petitioner-appellant that under the Kerala Medical Officers’
Admission to Post Graduate Medical courses under Service Quota
Act, 2008 (Act 29 of 2008), hereinafter referred to as “the Act”,
one seat each in M.D., TB & RD and Diploma in TB & RD is
reserved under Tuberculosis Service Quota and the requirement
is minimum service of five years in the Department out of which
either one year service in a Tuberculosis Hospital or two years
service in a Tuberculosis unit. According to the learned counsel,
as the petitioner-appellant had deputation as Consultant to the
WHO, worked nearly for seven years and ten months,
non-consideration of this period, which is more than equivalent to
five years service in the Department, including one year service
in a Tuberculosis Hospital or two years service in a Tuberculosis
– 4 –
unit, the learned Single Judge has erroneously held that this
service cannot be held to be sufficient.
6. On perusal of the Act, it is to be noted that taking
into consideration the fact that on account of inherent risk
involved in treating TB patients, many of the doctors are
unwilling or reluctant to work in TB Hospitals and TB units and to
encourage the doctors, an incentive has been provided by way of
reserving seats for the doctors working in the TB Hospitals and
TB Units and as such the main requirement for being considered
for eligibility under this quota is the actual service rendered for a
minimum period of one year in either TB Hospital or two years
service in TB Unit. Admittedly, the petitioner-appellant has not
worked in any TB Hospital or in the TB Unit; but what is claimed
is that, as he was working as Consultant in RNTCP under the
WHO and practically he had to supervise the eradication of
Tuberculosis in the entire State, his services as such should have
been considered as having experience of more than two years in
TB unit.
– 5 –
7. As rightly noted by the learned Single Judge, in our
view, under the Act, the minimum requirement for eligibility
under the Tuberculosis Service Quota is, five years of service in
the Department out of which either one year service in a TB
Hospital or two years service in a TB unit and it is mandatory.
This service in the Hospital or Unit means actual active
participation as doctor, viz., consultation and treatment of T.B.
Patients. Undisputedly, the petitioner-appellant has not worked in
the TB Unit or in active participation in TB Hospital. However, on
perusal of the programme and the technical and operational
guidelines for Tuberculosis control in respect of Revised National
Tuberculosis Control Programme, it is to be noted that he was
only working as a Consultant and not as an active doctor in the
TB Hospital or TB Unit. The deputation of the petitioner-appellant
to the WHO cannot also be treated as rendering service in any TB
Unit. Going by Clause VII(a)3 of the Prospectus, it is clear that
the applicant under the Tuberculosis Service Quota should be
regular staff under the Health Services Department/Medical
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Education Service/Insurance Medical Service/Municipal Service
and should have completed a minimum period of service under
the Government of Kerala. In our view, the services rendered by
the petitioner-appellant as Consultant on deputation cannot be
considered as service under the Government of Kerala, especially
as he is lacking active physical service as a doctor treating T.B.
patients in either TB Hospital or TB Unit to the minimum period
prescribed. In our view, unless a person has rendered actual
physical service in the TB Hospital by treating the patient, he
cannot be considered under the Tuberculosis Service Quota. As is
evident from the Special Rules Agreement executed by the
petitioner-appellant and the WHO and Revised National
Tuberculosis Control Programme, his duty was only to provide
technical support for training, supervision and implementation of
RNTCP. He was required to visit the TB Unit only once, per
quarter initially and once in six months thereafter. He was merely
a Consultant and was not diagnosing or treating the Tuberculosis
patients and as such we find that the petitioner-appellant had not
– 7 –
rendered minimum one year service in TB Hospital or two years
service in TB Unit. Hence, we find that the findings and
conclusion arrived at by the learned Single Judge are just and
proper and need no interference.
In the result, for the reasons stated above, the Writ
Appeal is devoid of merits and the same is dismissed.
Sd/-
S.R. Bannurmath
Chief Justice.
Sd/-
Kurian Joseph
Judge.
vku/-
(True copy)