Nativity Clause In Medical Officers Quota For PG medical Admissions INVALID: Kerala HC

Ernakulam: The Kerala High Court recently held a nativity clause in Medical Officers' Quota for Admission to Postgraduate medical courses as invalid and unconstitutional after observing that the said clause discriminates between persons born in Kerala and those born outside the State, although they are serving in Kerala.

Due to this nativity clause, non-resident medical officers used to be disqualified from applying under the service quota for the Kerala Medical Officers for admission to PG medical courses.

Striking the clause down, the Kerala HC bench comprising Justice Mohammed Nias opined that the State cannot include any clause in the prospectus preventing a medical officer under the Kerala Medical Officers' Admission to Post Graduate Courses Under Service Quota Act from being considered under any service quota for admission to PG medical courses based on nativity alone.

"The nativity clause in the instant case discriminates between persons born in the state of Kerala and those born outside the State, and such discrimination falls foul of Article 15(1) of the Constitution," the bench observed.

These observations were made by the bench while considering a plea filed by an MBBS graduate from Dr MGR Medical University Chennai, challenging the concerned nativity clause 4.2. The petitioner is a permanent Medical Officer working in the Department of General Medicine, Medical College, Palakkad, administered directly by the SC-ST department of Kerala Government.

Due to the concerned clause, the petitioner is prevented from participating in the Medical PG admission under the service quota as he is not a native of the State of Kerala.

Pointing out that he was denied admission solely on grounds of his nativity, the petitioner alleged it to be a clear case of discrimination. He submitted that since he is a Medical Officer under the State, he cannot be prevented from appearing in the test under the service quota. However, the prospectus imposes a nativity clause.

While considering the matter, the HC bench noted that the Kerala Medical Officers' Admission to Post Graduate Courses Under Service Quota Act, 2008, was enacted to provide for a quota of seats among Medical Officers of the State of Kerala and to have a selection procedure for admission to various PG medical courses in the medical colleges under the service quota, considering their service under the Government.

At this outset, the bench observed, "The petitioner, as a Medical Officer, is coming within the meaning of Section 2(d) of the Act, rendering service that comes under Section 2(j) of the Act. Service quota is also defined to mean the number of seats allotted for the Medical Officers in the service of the State, and "State" in the Act means the State of Kerala. It is undisputed that the petitioner squarely comes within the meaning of all the definitions mentioned above being a Medical Officer in service under the State and that the service quota is meant for such Medical Officers. Even the procedure for selection mentioned in the Act is for the selection of Medical Officers under the service quota, considering their service under the Government."

The Court observed

"the moment the petitioner was selected as a Medical Officer, and he became entitled to participate in the selection process under service quota, his ancestry or place of birth recedes to insignificance."

Holding that the actions of the Government were unconstitutional, the bench noted,

"After he was appointed as a Medical Officer, which did not have any restriction as to the place of birth, and which could not have, citing the place of birth as a reason after he became a Medical Officer to deprive of his chance to participate in the selection process was hit by Articles 14 and 15 of the Constitution of India. The nativity clause in the instant case discriminates between persons born in the state of Kerala and those born outside the State, and such discrimination falls foul of Article 15(1) of the Constitution. In the instant case, the petitioner satisfies all the eligibility under the Act, the Rules and the prospectus except the nativity clause. The petitioner is also domiciled in Kerala being employed in the State service. What is permitted by the Act of 2008 could not have been taken away by the prospectus issued under the provisions of the said Act. The actions of the Government are thus clearly unconstitutional."

"To devalue merit at those levels can never be in the interest of the State. The offending clause in the instant case when judged on the touchstone of Articles 14 and 15 of the Constitution of India, the same must be held to be void. Though the classifications can be founded on different bases, there must be a nexus between the basis of classification and the object of the Act under consideration. Article 14 forbids discrimination not only by a substantive law but also by a law of procedure. As stated earlier, the makers of the Constitution make a distinction between the expressions “place of birth” and “domicile”, and they reflect two different concepts," it further noted.

Clarifying that the power of the State to identify the sources for admission cannot extend to violate the constitutional guarantees, the HC bench granted relief to the petitioner and ordered,

"In the light of the above discussion, the writ petition is allowed. It is declared that clause 4.2 of Ext.P9 prospectus (Nativity clause), to the extent it disqualifies the petitioner or other Medical Officers from applying under the service quota of the Act, is invalid and unconstitutional and, therefore, declared null and void. It is declared that the State cannot include any clause in the prospectus that prevents a Medical Officer under the Act from being considered under any service quota for admission to the Medical Post Graduate Degree Courses based on Nativity alone."

To view the court order, click on the link below:

https://medicaldialogues.in/pdf_upload/kerala-hc-nativity-clause-234143.pdf

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