Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 846 (PAT)

Aqueel Sarwar v. State Of Bihar

2013-07-18

MIHIR KUMAR JHA

body2013
ORDER Heard learned counsel for the parties in respect of the following relief prayed in this writ application:- "(i) For necessary direction to the respondents-Bihar Combined Entrance Competitive Examination Board, Patna (hereinafter referred to as BCECE only) to give weightage @ 10%, 20% and 30% for each year of service rendered by the petitioners in the remote or difficult areas in post Graduate Medical Admission Counselling, 2013 (hereinafter referred to as PGMAC only), which is commencing from 17.07.2013 pursuant to the State merit list prepared on the basis of National Eligibility-cum-Entrance Test (hereinafter referred to NEET-PG, 2013 only) (ii) For holding that the petitioners are entitled for the weightage of marks for the services rendered by them in remote/difficult areas in view of the proviso to sub-clause-IV of Clause-9 of Post Graduate Medical Education Regulation, 2000 inserted vide amendment of 2012 as contained in Notification dated 15th February 2012 issued by the Govt. of India. (iii) For staying the PGMAC-2013 during the pendency of this writ application." 2. Having regard to the fact that the issue in hand is squarely settled by the judgment of the Apex Court in the case of Satyabrata Sahoo and Others Vrs. State of Orissa and Others; (2012) 8 Supreme Court Cases 203, prohibiting any award of weightage for admission in Post Graduate course in the open category on the basis of experience of the Doctors in Government employment serving in rural/remote/different area in the rural service, this Court will have not option but to hold that the present application seeking exactly the same relief is wholly misconceived. 3. Mr. Vindhyachal Singh, learned counsel for the petitioner, however, would like to distinguish the aforementioned judgment by taking a plea that in Prospectus issued in the State of Bihar being different than the State of Orissa, the facts of the case are different and consequentially the ratio laid down therein by the Apex Court cannot be made applicable. In the considered opinion of this Court such submission of Mr. Singh has to be only noted for its being rejected. It was initially Medical Council of India which had incorporated such provision for weightage and State of Orissa had incorporated it in its prospectus. The Apex Court in the case of Satyabrata Sahoo (Supra) had examined the whole aspect including this situation in a very compact manner. Singh has to be only noted for its being rejected. It was initially Medical Council of India which had incorporated such provision for weightage and State of Orissa had incorporated it in its prospectus. The Apex Court in the case of Satyabrata Sahoo (Supra) had examined the whole aspect including this situation in a very compact manner. Paragraphs no.25 to 28 of this judgment of Apex Court in fact, takes note of both types of cases clarifying that there were states who had included such provision for giving reservation to any in-service candidates by way of weightage which reads as follows:- "25. The purpose and object for giving weightage to in-service candidates who have rendered rural/tribal service is laudable and their interest has been taken care of by the Medical Council of India as well as the prospectus issued for admission to the various medical college in the State of Odisha but they have to come through the proper channel i.e. the channel exclusively earmarked for in-service candidates and not through the channel earmarked for candidates in the open category just like any other who fall under that category. Further, it is also relevant to note that those who get admission in postgraduate courses through the open category have to execute a bond stating that they would serve rural/tribal areas after completion of their post-graduation. Infact, weightage is given to those candidates who have rendered service in rural/tribal areas when they compete for admission to PG (medical) courses in in-service category for whom 50% seats are earmarked. 26. We also find another fallacy in Clause 11.2 read with Clause 6.2.1 of the prospectus. Clause 6.2.1 of the prospectus says that an in-service candidate is one who at the time of application is in the employment in the Government of Odisha and has completed a length of 5 years of service which includes all categories of employment like contractual/temporary/ad hoc/regular by 31.12.2011. Therefore, a doctor who is doing rural service on contract or on temporary basis or on ad hoc basis by 31.12.2011 will also get the benefit. At the same time, the candidates who pass out MBBS either in regular service or in contractual/temporary/ad hoc service in a private hospital even though serving in remote/tribal areas would not get that benefit even though those doctors are also rendering the same service. At the same time, the candidates who pass out MBBS either in regular service or in contractual/temporary/ad hoc service in a private hospital even though serving in remote/tribal areas would not get that benefit even though those doctors are also rendering the same service. Every doctor who goes out of medical college after MBBS would not get an opportunity to serve in a rural/tribal area by way of contractual/temporary/ad hoc or regular service offered by the State of Odisha or a Public Sector undertaking. Few may fall in that category for various reasons and they get an advantage and those who get that advantage of course can claim weightage when they are being considered in the in-service category. 27. We notice that the seats earmarked for the open category by way of merit are few in number and encroachment by the in-service candidates into that open category would violate Clause 9(1)(a) of the MCI Regulations, which says that students for PG medical courses shall be selected strictly on the basis of the inter se academic merit i.e. on the basis of the merit determined by the competent test. Direct category or open category is a homogeneous class which consists of all categories of candidates who are fresh from college, who have rendered service after MBBS in government or private hospitals in remote and difficult area like hilly areas, tribal and rural areas and so on. All of them have to compete on merit being in the direct candidate category, subject to rules of reservation and eligibility. But there can be no encroachment from the category to another. Candidates of in-service category cannot encroach upon the open category, so also vice versa. 28. We find that except the State of Odisha and, to some extent, the State of Tamil Nadu, none of the other States in India has incorporated such a clause in any of their prospectus for admission to the postgraduate medical courses and students who fall under the open category in those States are, therefore, not affected by such weightage." 4. From the aforesaid extract of the judgment of the Apex Court it is absolutely clear that M.C.I. Regulations which had made such provision for giving weightage for experience to the doctors in the employment for rural/remote/difficult area would encroach upon the right of the candidates of open category and was itself unsustainable. 5. From the aforesaid extract of the judgment of the Apex Court it is absolutely clear that M.C.I. Regulations which had made such provision for giving weightage for experience to the doctors in the employment for rural/remote/difficult area would encroach upon the right of the candidates of open category and was itself unsustainable. 5. In that view of the matter, this court would not find any merit in this application and the same is, accordingly, dismissed.