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Judgment
N. Nagaresh, J.
Admit.
Government Pleader takes notice for respondents 1 to 4. Respective Standing Counsel take notice for respondents 5 and 6. Advocate Aravind Ghosh takes notice for respondents 7, 9 and 10. Issue urgent notice by speed post to the 8th respondent.
The challenge is against Clause 11.7 of Ext.P6 Prospectus for admission to the Post Graduate Courses in Dental Surgery (MDS-Master of Dental Surgery) in Dental Colleges in Kerala, 2021, which provides that inter se seniority in service will be a criteria for selection to MDS Course. The question whether admission can be made to the inservice quota based on inter se service seniority of the eligible candidates came up for consideration before the Hon'ble Apex Court in Civil Appeal Nos.297 to 298 of 2015 and the Hon'ble Apex Court, as per Ext.P11 judgment dated 12.01.2015, held that merit alone can be the basis of admission among candidates belonging to any given category. The Hon'ble Apex Court held that when the inservice candidates belong to one category, their inter se merit cannot be overlooked only to promote seniority which has no place in the scheme of MCI Regulations. Prima facie, Clause 11.7 of Ext.P6 Prospectus goes against the law laid down by the Apex Court in Ext.P11 judgment.
The learned Government Pleader asserted that the Hon'ble Apex Court in the judgment in Tamil Nadu Medical Officers' Association and others v. Union of India and others [(2021) 6 SCC 568] has held that the observations in the case of Sudhir N. (Ext.P11 judgment) that Regulation 9 is a complete code in itself may not be construed with respect to providing reservation and/or making special provision like providing separate source of entry for inservice candidates within the State Quota and subject to fulfillment of other criteria fixed and provided by the MCI.
A perusal of the judgment in Tamil Nadu Medical Officers' Association and others (supra) would indicate that the question that was considered in the said judgment was whether the State has legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to Post Graduate Degree/Diploma Courses, in exercise of powers under Entry 25, List III.
When Regulation 9(1) of the Post Graduate Medical Education Regulations, 2000 provides that students for Post Graduate Medical Courses shall be selected strictly on the basis of their academic merit, the sustainability of adoption of any other criteria like seniority in service is doubtful.
In the circumstances, there will be an interim order staying the operation of Clause 11.7 of Ext.P6 Prospectus, pending final disposal of the writ petition. There will be a further direction to the 3rd respondent to provisionally include the petitioner in the service quota in the provisional allotment list to be published, if the petitioner is otherwise entitled based on her rank in the NEET - MDS, 2021