The Kerala High Court recently struck down as unconstitutional a nativity clause that restricted admissions to postgraduate medical courses under the service quota to only doctors born in Kerala [Dr. M Ganeshkumar v. State of Kerala & Ors.].Justice Mohammed Nias CP held that the nativity clause violated Article 15(1) of the Constitution which prohibits discrimination against any citizen on grounds of religion, race, caste, sex, place of birth, etc."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 Court held.The Court proceeded to strike down the clause and declare that the State cannot include any such clause that prevents medical officers born in other States from being considered under the service quota for post-graduate medical courses in Kerala."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," the March 7 judgment stated.The judgment was passed on a petition moved by an MBBS graduate who was a native of Tamil Nadu. He was working as a permanent medical officer at the Medical College, Palakkad, which is directly administered by the Kerala government.However, due to the nativity clause in the prospectus for admission, he was unable to participate in the admission for post-graduate medical courses in the service quota.The nativity clause said that only Indian citizens of Kerala origin are permitted to apply, and those candidates who are sons/daughters of non-Kerala parents should have obtained an MBBS degree from a medical college in Kerala.The Court noted that as per the provisions of the Kerala Medical Officers' Admission to Post Graduate Courses Under Service Quota Act, 2008, and the Kerala Medical Officers' Admission to Post Graduate Medical Courses Under Service Quota Rules, 2009, the petitioner was eligible to be considered under the service quota for medical officers.It is only because of the nativity clause in the prospectus that he was unable to participate in the selection process, the Court found.The Court said that such discrimination on the basis of one's place of birth falls foul of the Constitution."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....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", the Court held.It accordingly struck down the nativity clause and declared that no such clause can be included in the prospectus.The petitioner was represented by advocates George Varghese, Manu Srinath, Sreelakshmi R Nair, and Nimesh Thomas.Government Pleader PG Pramod appeared for the State.
TAGS: Kerala High Court unconstitutional nativity clause postgraduate medical courses service quota Dr. M Ganeshkumar v. State of Kerala & Ors.
