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2013 DIGILAW 853 (PAT)

Paritosh Kumar v. State of Bihar

2013-07-22

RAVI RANJAN

body2013
ORDER I have heard learned counsel for the parties. 2. Through this writ application, petitioner seeks direction for consideration of his admission in Post Graduate Diploma course under State quota against 50% of seats reserved for in-service candidates who have served in State Government for atleast three years in remote and difficult areas of the State as per the provisions contained under clause 6(vii) of the Medical Council of India notification dated 15.02.2012 read with clause 4.4(a)(i) of the prospectus of the Bihar Combined Entrance Competitive Examination Board meant for Post Graduate Medical Admissions Counselling (hereinafter to be referred to as PGMAC)-2013 as per the merit list published by the National Board of Examination after conducting National Eligibility-cum-Entrance Test(hereinafter to be referred to as “NEET”)-Post Graduate. 2. Learned counsel for the petitioner submits that after completing M.D. Physician course from Russian State Medical University in 2007, a degree which is equivalent to MBBS in India, the petitioner was allowed to be registered on the roll of the Bihar State Medical Council as well as on the roll of the Medical Council of India vide Annexure 1 and 1/A. The petitioner, thereafter, was duly appointed on the contract basis as Medical Officer vide Annexure 2 and is serving in the remote and difficult area as per the certificate granted vide Annexure 3 as well as Annexure 4 (granted by the Director-in-Chief, Health Services, Government of Bihar). 3. It is submitted that he had appeared in NEET Examination for getting admission in Post Graduate course and has been accorded all India ranking of 58928 and State ranking of 3167 as per the result dated 31.05.2013 contained in Annexure 6. Learned counsel has drawn the attention of this Court towards Clause 4.4 of the prospectus of the Post Graduate Medical Counselling, 2013 declaring reservation of 50% of State quota seats of the State of Bihar in the MD/MS/PGD course based on merit list of NEET-PG for the Medical Officers who are in service of the State of Bihar and have served atleast three years in remote and/or difficult areas. 4. Learned counsel has pointed out that though the petitioner has served as such which would be apparent from the certificate granted by the Director-in-Chief, Health Services, Government of Bihar, as contained in Annexure 4 but he is not being given such benefit of reservation. 5. Per contra, learned counsel for the respondent nos. 4. Learned counsel has pointed out that though the petitioner has served as such which would be apparent from the certificate granted by the Director-in-Chief, Health Services, Government of Bihar, as contained in Annexure 4 but he is not being given such benefit of reservation. 5. Per contra, learned counsel for the respondent nos. 3 and 4, i.e., the Bihar Combined Entrance Competitive Examination Board, which is holding the counseling, has submitted that the petitioner since having not passed his MBBS Examination from any Medical College of the State of Bihar as per eligibility criteria laid down in Clause 5(1) of the prospectus contained in Annexure 7, he would not be eligible for admission under the State quota. It is urged that he can only seek admission in All India Open Category. Learned counsel has submitted that in several decisions the Apex Court as well as this High Court have upheld the institutional preference to be followed for admission under 50% quota of the concerned State. Learned counsel has placed reliance upon a decision of a Constitutional Bench of the Supreme Court rendered in Saurabh Choudri and others Vs. Union of India and others [(2003)11 Supreme Court Cases, 146]. In the aforesaid case the Apex Court has laid down the guidelines to be followed for entrance in the concerned course. It has been held that the institutional preference to the extent of 50% of the State quota concerned was held to be permissible. The Hon’ble Supreme Court in State of M.P. and others Vs. Gopal D. Tirthani and others [(2003)7 Supreme Court Cases, 83] has already held, while considering allocation of 20% seats for in-service candidates, that it is not a reservation in the strict sense and, thus, its validity cannot be determined on constitutional principles applicable to communal reservations. There is a laudable purpose sought to be achieved by such allocation as such candidates would have already served for certain years in remote or difficult areas but even after securing the Post Graduate degree or Diploma by virtue of being servant in service of the State they would be further required to serve in remote areas. It has also been held that such allocation would withstand the test of reasonable classification as they are founded on an intelligible differentia having rational relation with the object sought to be achieved. 6. It has also been held that such allocation would withstand the test of reasonable classification as they are founded on an intelligible differentia having rational relation with the object sought to be achieved. 6. Learned counsel has also placed reliance upon decisions dated 08.02.2007 and 19.02.2008 rendered by different Single Benches of this Court in C.W.J.C. No. 886 of 2007(Dr. Sucheta Kumari Vs. The State of Bihar and others) and its analogous case and C.W.J.C. No. 3137 of 2008 (Vikash Kumar Raj Vs. The State of Bihar and others) and its analogous case, respectively, as well as upon a decision dated 23.03.2010 rendered in L.P.A, No.990 of 2009 (Dr. Rajnish Kumar and others Vs. The State of Bihar and others) and its analogous cases to impress upon this Court that the issue of preferential institution under the State quota has been upheld under the aforesaid decisions and the petitioner admittedly having passed his MBBS Examination, not only from the outside the State but outside the country, he may be eligible for admission under 50% of All India quota but he cannot be granted the benefit of admission under the State quota as he does not possess the necessary minimum qualification or the minimum educational criteria. 7. It may be noted that the petitioner has appeared in NEET-PG 2013 and in the result has been given All India and State ranking which would be apparent from Annexure 6. In view of the rival contention as noted above, the issue for determination in this case would be as to whether the in-service reservation is entirely a different category altogether or the qualification and eligibility as contained in Annexure 5 of Annexure 7 would also apply in case of such claimant of in-service reservation. Identical issue, however, arising from the State quota of the State of Orissa, came to be considered by the Apex Court in Satyabrata Sahoo and others Vs. State of Orissa and others [(2012)8 Supreme Court Cases, 203]. Their Lordships, in the aforesaid case, have noticed that as per the relevant provisions, there are two distinct categories under the State quota of Orissa. One is In-service Category and another is for Direct Candidates. They were found to be defined as separate class in the prospectus issued by the authorities of the State of Orissa. Their Lordships, in the aforesaid case, have noticed that as per the relevant provisions, there are two distinct categories under the State quota of Orissa. One is In-service Category and another is for Direct Candidates. They were found to be defined as separate class in the prospectus issued by the authorities of the State of Orissa. In the aforesaid background, the relevant provisions of the prospectus of PGMAC-2013 would have to be examined. 8. For better appreciation, the relevant provisions under Clause 4.4 as well as 5(5.1) are quoted as under:– “4.4 (a) (i) 50% of the seats in Post Graduate Diploma courses will be reserved for Medical Officers in the Bihar Govt. service, who have served for atleast three years in remote and difficult areas of the state and will produce authentic original certificate from Director in Chief, Health Department, Govt. of Bihar, to this effect at the time of Interview/Counselling. Also they will have to give undertaking to serve for two more years in remote or difficult areas after acquiring the P.G. Diploma degree. Such reserved seats are included in the available Post Graduate Diploma Seats. (ii) If eligible candidates are not available after the allotment of seats in any reservation category, the remaining vacant seats will be made available for all other candidates of the same category. (b)(i) For being eligible for the above mentioned reservation, the concerned Medical Officer has to submit a certificate in the format given in Anneure-4, that he has rendered Govt. service in remote/difficult areas of the state for a period of minimum three years, duly issued by the Director in Chief, Health Services, Department of Health, Govt. of Bihar. (ii) For being eligible for the above mentioned reservation, the concerned Medical Officer will also have to submit an undertaking by an affidavit in the format given in Annexure-4, that he is ready to serve for a further period of two years in remote/difficult areas of the state. 5. QUALIFICATION & ELIGIBILITY FOR MD/MS/PG DIPLOMA COURSES GROUP: 5.1 Educational: (i) The candidates must have passed the M.B.B.S. Examination from any Medical College of Bihar State included in the schedule of Medical Council of India. (ii) The candidates who are permanent residents/domiciled of Bihar and have been admitted in MBBS course on the basis of competitive examination conducted on behalf of Govt. (ii) The candidates who are permanent residents/domiciled of Bihar and have been admitted in MBBS course on the basis of competitive examination conducted on behalf of Govt. of Bihar or by CBSE (under All India Quota) before the bifurcation of Bihar i.e. 15.11.2000 in Medical Colleges situated in Jharkhand and have obtained the degree of MBBS are also eligible for nomination/allotment of a seat for admission in academic session 2013. (iii) The candidates must have completed the rotating Internship before the date of P.G. Medical Counselling 2013. (iv) The candidates must have obtained permanent Registration from Medical Council of India or Bihar State Medical Council. A candidate, who has not obtained permanent registration from Medical Council of India or Bihar State Medical Council but is otherwise eligible, may be allowed to appear at PG Medical counseling 2013 on provisional basis but he must obtain the same within one month from the date of his admission in P.G. Course as per the rules of the Medical Council of India, failing which the admission of the candidate shall be cancelled. He must also be registered after admission under the concerned University within the period prescribed by that University.” 9. From the reading of Clause 4.4 it appears that separate eligibility criterion has been fixed for in-service candidate. Clause 4.4(b) clearly lays down that for being eligible for above reservation the concerned officer has to give certificate in the format given in Annexure 4 duly issued by the Director-in-Chief, Health Services, Government of Bihar that he has rendered Government service in remote and/or difficult area for a minimum period of three years. If a person is rendering service in the State of Bihar, admittedly, he must have passed MBBS Examination and must have been registered with the State Medical Council and Medical Council of India. The petitioner has appended such certificate. While laying down such eligibility criteria under Clause 4.4 it has nowhere been stated that the institutional preference of having passed MBBS Examination from the institution of the State of Bihar would also be applicable to such Medical Officers who are seeking reservation under such Clause. 10. Thereafter, under Clause 5.1, eligibility has been laid down that the candidate must have passed MBBS Examination from any Medical College of the State of Bihar for seeking admission under the State quota. 11. 10. Thereafter, under Clause 5.1, eligibility has been laid down that the candidate must have passed MBBS Examination from any Medical College of the State of Bihar for seeking admission under the State quota. 11. Thus, in my considered opinion, it appears that different criteria have been laid down for in-service candidates and other candidates seeking direct admission under the State quota. For appointment in the State of Bihar the criterion of passing MBBS Examination from preferential institution must not be there, as the petitioner was admittedly appointed after walk-in-interview, However, the authority concerned has only used the terms “Medical Officers serving with the State Government”. It, therefore, appears that purposely the passing of MBBS examination from preferential institution has not been included. Thus, in my considered opinion, such submission raised on behalf of the respondent nos. 3 and 4 is misconceived and would not be acceptable as from bare reading of the provision it appears that relaxation and reservation have been given to all the Medical Officers serving with the State of Bihar as per the Clause 4.4 of Annexure 7 in view of the service rendered by such Medical Officers in remote and/or difficult areas. Otherwise also, if such provision imposing such condition within the persons of a distinct class or category is made by including preference of institution that would have to withstand the test of reasonable classification satisfying the following twin tests as held in State of M.P. and others (supra): (i) it must be founded on an intelligible differential, and (ii) the differnetia must have a rational relation with the object sought to be achieved. 12. The object of Clause 4.4 clearly appears to give incentive to the in-service candidates who have served and are further willing to serve in the remote/difficult areas of State as its Medical Officers. Then, again a distinction between such Medical Officer cannot be read in the aforesaid provision which appears to have purposely been excluded from the eligibility criteria laid down under Clause 4.4(b) of the prospectus. 13. No other point has been raised either by the petitioner or by the respondents at the time of hearing. 14. Then, again a distinction between such Medical Officer cannot be read in the aforesaid provision which appears to have purposely been excluded from the eligibility criteria laid down under Clause 4.4(b) of the prospectus. 13. No other point has been raised either by the petitioner or by the respondents at the time of hearing. 14. Thus, it is held that if the petitioner is otherwise eligible for grant of benefit under Clause 4.4 of the prospectus as contained in Annexure 7 and has served with the State of Bihar for a minimum period of three years in the remote and difficult area being in service as per the requirement of the State of Bihar, the provisions, contained in Clause 5.1 of the aforesaid prospectus, would not come in his way. Accordingly, this writ application stands allowed to the extent as indicated above.