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2017 DIGILAW 247 (JK)

State of J&K v. Shahnawaz Ahmed Choudhary

2017-05-19

ALOK ARADHE, DHIRAJ SINGH THAKUR

body2017
JUDGMENT : Mr. Alok Aradhe, J. Both these intra Court appeals have been preferred against judgment dated 26.04.2017 passed by learned Single Judge in SWP No. 577/2017. Since common questions of law and fact arise for consideration in these appeals, they were heard analogously and are being decided by this common judgment. In order to appreciate the appellants' challenge to the impugned judgment few facts need mention, which are stated infra : 2. A Common Entrance Test for admission to Post Graduate Courses in Medicine, namely, National Eligibility-cum-Entrance Test was held by the National Board of Examinations between 05.12.2016 to 13.12.2016. The respondents in LPASW No. 85/2017 and the appellants in LPASW No. 91/2017 appeared in the Examination. The result of National Eligibility-cum-Entrance Test was declared on 13.01.2017 and qualifying criteria for various categories, namely, General, SC, ST, PBC and Persons with disability was prescribed as 50%, 40% and 45% percentile respectively. 3. In exercise of powers under Section 33 read with Section 20 of the Indian Medical Council Act, 1956, the Medical Council of India framed Post Graduate Medical Education Regulations, 2000 (herein-after referred to as "Regulations") which were amended from time to time. The Regulations were amended in the year 2012 by a Notification 15.02.2012, by which a Proviso was incorporated in the Regulations, enabling the State Government to provide weight-age in marks as an incentive @ 10% of the marks obtained for each year of service in remote and are difficult areas upto maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test and the remote and difficult % areas was to be defined by the State Government/Competent Authority from time to time. 4. The respondents in LPASW No. 85/2017 were employed under the National Rural Health Mission on contract basis. According to the aforesaid respondents they were employed in difficult rural areas. However, Board of Professional Entrance Examination in flagrant violation of Regulation 9 of the Regulations framed by the Medical Council of India decided to give weight-age to in-service candidates not in accordance with Regulation 9 but in terms of SRO 401 of 2009 dated 29.12.2009, which provides for weight-age of only 2, marks for each completed years of service in rural service/difficult areas subject to maximum of 10 marks. In the aforesaid factual background, respondents in LPASW No. 85/2017 approached this Court by filing the writ petition in which, inter alia, relief of quashment of SRO 401 dated 29.12.2009 was sought on the ground that the same is violative of Regulation 9 of the Regulations. A further relief of quashment of Notification dated 25.02.2017 to the extent of decision regarding weight-age of marks on account of rural service/difficult areas which was kept at the disposal of the State Government was also sought. A writ of mandamus was also sought seeking a direction to the appellants in LPASW No. 85/2017 to grant them the weight-age in marks as per Regulation 9 of the Regulations for having served in difficult areas. 5. The learned Single Judge vide impugned judgment dated 26.04.2017, allowed the writ petition and directed the appellant in LPASW No. 85/2017 to award the weight-age in marks in terms of Regulation 9 of the Regulations and to redraw the State merit list so that admission process is completed within the stipulated period. In the aforesaid factual backdrop, the State Government has filed LPASW No. 85/2017, whereas, the candidates holding MBBS Degree and are not in-service candidates have filed LPASW No. 91/2017. 6. Learned Advocate General fairly submitted that the Regulations framed by the Medical Council of India being Statutory in nature are binding on the State Government. It is further submitted that learned Single Judge grossly erred in holding that respondents in LPASW No. 85/2017 are entitled to benefit of Regulation 9 of the Regulations, as the State Government has not defined the remote and difficult areas. It is also submitted that Certificates have been issued to the respondents of having served in the difficult/rural areas in terms of SRO 401 dated 29.12.2009. It is urged that respondents in LPASW No. 85/2017 are not entitled to benefit of Regulation 9 of the Regulations, as they are not employees of public authority and there is no pleading in the writ petition that the respondents in LPASW No. 85/2017 are employees of public authority. It is argued that National Rural Health Mission is a Society and respondents in LPASW No. 85/2017, who were residents of the areas, were appointed under the National Rural Health Mission on contract basis. It is argued that National Rural Health Mission is a Society and respondents in LPASW No. 85/2017, who were residents of the areas, were appointed under the National Rural Health Mission on contract basis. It is also pointed out that even under SRO 201 of 2006, the State Government has not defined the difficult areas and in the Schedule appended to the aforesaid SRO the names of places have been mentioned where if an employee is posted he is entitled to an additional allowance. It is further submitted that the Srinagar Wing of this Court failed to take note of the aforesaid aspects of the matter in judgment dated 24.05.2016 passed in OWP No. 498/2016 on which reliance has been placed by the learned Single Judge. It is also pointed out that decision rendered in OWP No. 498/2016 was complied with as Contempt Petition No. 432/2016 was pending and the order dated 16.06.2016 granting the benefit of judgment to the petitioner in OWP No. 498/2016 was made subject to final disposal of LPA. In support of his submissions, learned Advocate General has commended us to Paragraphs 20 to 27 of the decision rendered by the Supreme Court in the case of State of U.P. and others v. Dr. Dinesh Singh Chauhan, AIR 2016 SC 3841 . 7. Mr. Sunil Sethi, learned Senior Counsel for the appellants in LPASW No. 91/2017 submitted that Regulation 9 of the Regulations is partly directory and partly mandatory. It is submitted that Regulation 9 of the Regulations insofar as it pertains to providing weight-age in the marks for serving in remote and difficult areas is directory in nature, whereas the same is mandatory in nature insofar as it provides prescription of reservation to the extent of 50% in Post Graduate Diploma Courses to in-service candidates. It is further submitted that under Regulation 9, the State Government has to specify the public authority as well as the remote and difficult areas. Since the State Government has neither prescribed public authority nor difficult areas, therefore, Regulation 9 of the Regulations is of no assistance to respondents in LPASW No. 91/2017. It is further submitted that under Regulation 9, the State Government has to specify the public authority as well as the remote and difficult areas. Since the State Government has neither prescribed public authority nor difficult areas, therefore, Regulation 9 of the Regulations is of no assistance to respondents in LPASW No. 91/2017. It is submitted that in case, the respondents in LPASW No. 91/2017 are granted the benefit of Regulation 9 of the Regulations, the fresh Graduates who may be more meritorious and may have secured more marks than the in-service candidates in the National Eligibility-cum-Entrance Test would be ousted from the merit list as in-service candidates would get extra 450 marks for rendering 3 years of service which they have rendered on their own volition. It is further submitted that Regulation 9 of the Regulations enables the State Government to provide weight-age of marks insofar as it pertains to Post Graduate Degree Courses. It is also pointed out that in pursuance of the interim order granted by this Court on 03.05.2017, the counselling has already been held and the appellants in LPASW No. 91/2017 have already taken admission in the respective streams of Post Graduate Courses as per their merit. In support of his submissions, learned senior counsel has invited the attention of this Court to Paragraphs 21 to 23 of the decision rendered by the Supreme Court in the case of Dr. Dinesh Singh Chauhan (supra). 8. On the other hand, Mr. Z.A. Shah, learned senior counsel for the respondents submitted that Regulation 9 of the Regulations does not refer to nature of employment. It is further submitted that private respondents have been appointed by National Rural Health Mission, which is a Scheme funded by the Central Government and the State Government operates the same at the State level. It is also submitted that National Rural Health Mission is a public authority within the meaning of Regulation 9 of the Regulations. It is also submitted that the Doctors employed under the National Rural Health Mission are eligible to compete for the post of Assistant Surgeons like in service candidates and benefit of relaxation in age upto 40 years has been granted to them under Rule 17 of Classification, Control and Appeal Rules, 1956. It is also submitted that the Doctors employed under the National Rural Health Mission are eligible to compete for the post of Assistant Surgeons like in service candidates and benefit of relaxation in age upto 40 years has been granted to them under Rule 17 of Classification, Control and Appeal Rules, 1956. It is also submitted that the Doctors employed under the National Rural Health Mission are entitled to 50 days leave and in SRO 401, by reference to SRO 201, the difficult areas have been identified. It is argued that National Rural Health Mission is the competent authority to define remote and rural areas and the aforesaid authority has identified difficult areas, very difficult areas and inaccessible areas, vide communication dated 24.01.2014. It is pointed out that the competent authority, namely, the Director Health Services, has issued certificate to the respondents that they have served in difficult areas and the stand taken by the State Government makes Regulation 9 of the Regulations unworkable. It is also submitted that Regulation of the Regulations is a complete code in itself and in the State of Jammu and Kashmir, 375 seats are meant for Post Graduate Courses whereas 55 seats are reserved for Diploma Course and 18 paid seats are reserved for Degree Courses. It is also submitted that total share of the respondents comes to 4.53% and they are entitled to 10% of the marks for each year of service of the marks obtained by them in the examination. Learned senior counsel has commended us to the judgment in the case of Dr. Dinesh Singh Chauhan (supra). 9. Mr. Abhinav Sharma, learned counsel for respondents has invited the attention of this Court to the Regulation 41-A of the Jammu and Kashmir Civil Services Regulations and has pointed out that aforesaid Regulation empowers the Government to grant local allowance at such rates and at such places as qualify for it. It is further submitted that the factors determining the eligibility for the allowance shall by and large, be the remoteness of the place, its inaccessibility, severe inclement weather conditions, its remaining cut off from the rest of the State for a period of time, its expensiveness, lack and gross inadequacy of medical, educational, residential and other basic amenities of life, its health hazards and similar other rigorous conditions of living. It is also submitted that under Regulation 41-AAA, the allowance is admissible to Government servant, whether permanent, quasi-permanent or temporary, as also to the establishment charged to works on contingencies. It is argued that remote and difficult areas have been statutorily defined. It is also pointed out that Board of Professional Entrance Examination vide public notice dated 24.01.2017 has itself stated that rural service seats/difficult areas service shall be filled up strictly in accordance with the rules on the subject including MCI Regulations Proviso 9(2)d read with Hon'ble Supreme Court judgment in the case of State of U.P. v. Dinesh Singh Chauhan (supra). It is also pointed out that all the respondents have obtained the qualifying marks and have been selected for various Post Graduate Courses and in case they are allotted the marks as per Regulation 9 of the Regulations they shall be able to get admission in Post Graduate Courses in various discipline of their choice. In support of aforesaid submissions, reference has been made to Division Bench decision of Rajasthan High Court in the case of Dr. Chander Prakash Sharma v. State of Rajasthan, and it is pointed out that though against the aforesaid order Special Leave Petition has been preferred, namely, SLP(c) No. 12241 of 2017, however, no stay has been granted by the Supreme Court. 10. By way of rejoinder reply, learned Advocate General has submitted that respondents hold post under the Scheme framed by the Central Government, therefore, the respondents cannot be said to hold the post under the State Government as the employer of the respondents is the Society, which is not a public authority. It is further submitted that expression 'Competent Authority' used in Regulation 9 of the Regulations cannot be treated as National Rural Health Mission as weight-age of marks has to be given by the Competent Authority. It is also argued that SRO 201 does not define remote and difficult areas. Learned Advocate General has referred to decision of the High Court of Delhi in the case of Stuti Ranjan & others v. Government of NCT of Delhi & others and has pointed out that Doctors appointed under National Rural Health Mission cannot be treated at par with Doctors appointed on regular basis. Learned Advocate General has invited the attention of this Court to Para 34 of the judgment in the case of Dinesh Singh Chauhan (supra). 11. Learned Advocate General has invited the attention of this Court to Para 34 of the judgment in the case of Dinesh Singh Chauhan (supra). 11. We have considered the submissions made on both sides and perused the record. We deem it apposite to take notice of relevant Statutory provisions. Statutory Provisions The State Government has framed the Jammu and Kashmir Civil Services Regulations, 1956. Regulation 41-A(1) reads as under: "A local allowance may be granted by the Government at such rates and at such places as qualify for it. The factors determining the eligibility for the allowance shall by and large, be the remoteness of the place, its inaccessibility, severe inclement weather conditions, its remaining cut off from the rest of the State for a period of time, its expensiveness, lack and gross inadequacy of medical, educational, residential and other basic amenities of life, its health hazards and similar other rigorous conditions of living." Regulation 41 AAA provides that allowance will be admissible to local and non-local employees alike and shall be admissible to Government servant whether permanent, quasi permanent or temporary as also to establishment charged to works and contingencies. By way of SRO 201 of 2006 dated 15.06.2006 Regulation 41-BBB was inserted which provides that compensatory allowance/border allowance shall be allowed to Government servant at the rate given in Annexure-B to Chapter-II and shall be deemed to have come into effect from 01.04.2006. In the Annexure, the names of places in respective Districts as well as the rates of compensatory allowance and border allowance have been prescribed. In the Annexure, the names of places in respective Districts as well as the rates of compensatory allowance and border allowance have been prescribed. On 29th December, 2009, the State Government amended the Jammu and Kashmir Government Medical College (Selection of Candidates for Post Graduate Degree and Diploma Courses) Procedure Order 1995 by which following was inserted as Clause 4-A after Clause 4, which reads as under: "Weight-age for serving in difficult areas: The candidate shall be entitled to a weight-age for serving in the difficult areas as defined under notification SRO 201 of 2006 dated 15.06.2006 to the extent of 2 marks for each completed year of service in such area subject to a maximum of 10 marks." Thus, the State Government was alive to the fact that large number of posts in Public Health Care Units are lying vacant and unfilled in spite of sincere efforts of the State Government and accordingly by issuing SRO, decided to grant marks by way of incentive to the Doctors working in the difficult areas. 12. There is no cavil about the legal proposition that the Regulations framed by the Medical Council of India under Section 33 of the Medical Council of India Act, 1966, have statutory force and are binding on the State Government. See: Maharashtra University of Health Sciences v. Paryani Mukesh Jawaharlal, (2007) 10 SCC 201 and Fraznaseen v. Union of India, (2016) 13 SCC 521. Now we may advert to Regulation 9 of the Regulations, which laid down the procedure for Post Graduate students. Clause 9 of the Regulations has been subjected to several amendments by Notification published in the Gazette of India dated 21.10.2008, Clause 9(1)(B) was incorporated in the Regulations providing for 50% reservation of seats in Post Graduate Diploma Courses for Medical Officers in Government service who have served at least 3 years in remote and difficult areas and who after acquiring the Post Graduate Diploma were willing to serve for 2 more years in remote and/or difficult areas. By Gazette Notification dated 17.11.2009, a proviso was inserted after Clause 9(2)(d) for the purposes of providing weight-age of marks as incentive at the rate of 10% marks obtained for each year of service in remote or difficult areas subject to maximum of 30% of the marks obtained for determining the merit in the entrance test for Post Graduate admissions. By Gazette Notification dated 17.11.2009, a proviso was inserted after Clause 9(2)(d) for the purposes of providing weight-age of marks as incentive at the rate of 10% marks obtained for each year of service in remote or difficult areas subject to maximum of 30% of the marks obtained for determining the merit in the entrance test for Post Graduate admissions. By another Notification date 16.04.2010, the State Authorities were empowered to decide what would be remote/difficult areas. Regulation 9 of the Regulations Regulation 9 was amended vide Notification dated 15.02.2012 and a proviso was incorporated which reads as under: "Provided that in determining the merit of candidates who are in service of Government/public authority weight-age in the marks may be given by the Government/ Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent Authority from time to time." Thus, the Medical Council of India has amended the Regulations to provide 50% reservation in Post Graduate Diploma Courses for Medical Officer in the Government service who have served at least 3 years in remote and difficult areas and an incentive at the rate of 10% of the marks obtained in each year of service in remote or difficult areas as to maximum 30% of the marks obtained in the entrance test for admissions in Post Graduate Medical Course. 13. We may now advert to the decision of the Supreme Court in the case of State of U.P. & others v. Dr. Dinesh Singh Chauhan, AIR 2016 SC 3841 . Dr. Dinesh Singh Chauhan In the aforesaid decision, the Supreme Court dealt with three sets of matters. The first set of appeals were filed against common judgment of the Division Bench dated 07.04.2016 by which writ petitions preferred by in-service Medical Officers claiming benefit of Regulation 9 of the Regulations were disposed of and it was held that as per Regulation 9 only those candidates who have worked in the remote and difficult areas in the State as notified by the State Government/Competent Authority, alone would be eligible for weight-age of marks as incentive at the rate of 10% of the marks obtained for each year. The second set of appeals, was filed by Medical Officers of the State Medical Colleges seeking admission to Post Graduate Degree Courses claiming benefit of Regulation 9. The third set of proceedings under Article 32 of the Constitution of India was by students aspiring to take admission to various Post Graduate Degree Courses in the State of Uttar Pradesh who were affected by the interim order passed by the Supreme Court dated 12.05.2016. The Supreme Court while interpreting Regulation 9 held that the aforesaid provision does not provide for reservation for in-service candidate but only of giving a weight-age in the form of incentive marks as specified to the Class of in-service candidates who have served in notified remote and difficult areas in the State. The Paragraphs 22, 27, 30 and relevant extract of Paragraph 33 of the judgment read as under: "22. From the plain language of this proviso, it is amply clear that it does not envisage reservation for in-service candidates in respect of Post Graduate "Degree" Courses with which we are presently concerned. This proviso postulates giving weight-age of marks to "specified in-service candidates" who have worked in notified remote and/or difficult areas in the State - both for Post Graduate "Degree" Courses as also for Post Graduate "Diploma" Courses. Further, the weight-age of marks so allotted is required to be reckoned while preparing the merit list of candidates." "27. The imperative of giving some incentive marks to doctors working in the State and more particularly serving in notified remote or difficult areas over a period of time need not be underscored. For, the concentration of doctors is in urban areas and the rural areas are neglected. Large number of posts in Public Health Care Units in the State are lying vacant and unfilled in spite of sincere effort of the State Government. This problem is faced by all States across India. This Court in Dr. Snehelata's case (supra) had left it to the Authorities to evolve norms regarding giving incentive marks to the in-service candidates. The Medical Council of India is an expert body. Its assessment about the method of determining merit of the competing candidates must be accepted as final (State of Kerala v. T.P. Roshana; also see MCI v. State of Karnataka). Snehelata's case (supra) had left it to the Authorities to evolve norms regarding giving incentive marks to the in-service candidates. The Medical Council of India is an expert body. Its assessment about the method of determining merit of the competing candidates must be accepted as final (State of Kerala v. T.P. Roshana; also see MCI v. State of Karnataka). After due deliberations and keeping in mind the past experience, Medical Council of India has framed Regulations inter alia providing for giving incentive marks to in-service candidates who have worked in notified remote and difficult areas in the State to determine their merit. The Regulation, as has been brought into force, after successive amendments, is an attempt to undo the mischief." "30. As aforesaid, Regulations have been framed by an Expert Body based on past experience and including the necessity to reckon the services and experience gained by the in-service candidates in notified remote and difficult areas in the State. The proviso prescribes the measure for giving incentive marks to in-service candidates who have worked in notified remote and difficult areas in the State. That can be termed as a qualitative factor for determining their merit. Even the quantitative factor to reckon merit of the eligible in-service candidates is spelt out in the proviso. It envisages giving of incentive marks at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas up to 30% of the marks obtained in NEET. It is an objective method of linking the incentive marks to the marks obtained in NEET by the candidate who has worked in a notified remote and/or difficult area in the State for at least one year and has obtained 150 marks out of 200 marks in NEET, he or she would get 15 additional marks; and if the candidate has worked for two years, the candidate would get another 15 marks. Similarly if the candidate has worked for three years and more, the candidate would get a further 15 marks in addition to the marks secured in NEET. 15 marks out of 200 marks in that sense would work out to a weight-age of 7.5% only, for having served in notified remote and/or difficult areas in the State for one year. Similarly if the candidate has worked for three years and more, the candidate would get a further 15 marks in addition to the marks secured in NEET. 15 marks out of 200 marks in that sense would work out to a weight-age of 7.5% only, for having served in notified remote and/or difficult areas in the State for one year. Had it been a case of giving 10% marks enbloc of the total marks irrespective of the marks obtained by the eligible in-service candidates in NEET, it would have been a different matter. Accordingly, some weight-age marks given to eligible in-service candidate linked to performance in NEET and also the length of service in remote and/or difficult areas in the State by no standard can be said to be excessive, unreasonable or irrational. This provision has been brought into force in larger public interest and not merely to provide institutional preference or for that matter to create separate channel for the in-service candidate, much-less reservation. It is unfathomable as to how such a provision can be said to be unreasonable or irrational." "33.............. The provision in the shape of Regulation 9 is to determine the merit of the competing candidates. Provision for giving incentive marks to in-service candidates is permissible in law; and thus the proviso to Clause IV in Regulation 9 must be upheld in larger public interest. That provision has been introduced, inter-alia, also to address the deficiency and lack of response of graduate doctors to serve in remote or difficult areas in the State. The scarcity of doctors in villages has been felt for quite some time for which the provision in the form of proviso to Clause IV of Regulation 9 was necessitated. This concern was even echoed in the Rajya Sabha. Following questions were raised which were duly answered by the Minister for Health and Family Welfare on 23.12.2014. The same read thus:- "Questions "........ (a) The measures being taken by Government to make up for the extreme shortage of qualified and skilled doctors for health care in rural areas; (b) Whether government is planning to introduce measures to measures to introduce and enforce compulsory rural postings for doctors, before or after they have obtained an MBBS degree; (c) If so, the details thereof; and (d) If not the reasons therefor? Answers ....... Answers ....... At present, in order to encourage the doctors working in remote and difficult areas, the Medical Council of India with the previous approval of Central Government, has amended the Post Graduate Medical Education Regulations, 2000 to provide:- I. 50% reservation in Post Graduate diploma Courses for Medical Officers in the Government service, who have served for at least three years in remote and difficult areas; and II. Incentive at the rate of 10% the marks obtained for each year in-service in remote or difficult area upto the maximum of 30% of the marks obtained in the entrance test for admission in Post Graduate Medical Courses." 14. In the context of the aforesaid decision of Dr. Dinesh Singh Chauhan (supra) we may proceed to deal with the issues which arise for consideration in this petition, namely, (i) Whether Regulation 9 of the Regulations would apply in the absence of definition by the State Government/Competent Authority with regard to difficult and/or remote areas? (ii) Whether National Rural Health Mission is a public authority as defined under proviso to Regulation 9 of the Regulations? (iii) Whether respondents are entitled to benefit of Regulation 9 of the Regulations? We shall now proceed to deal with the issues at seriatim. It is an admitted fact that the State Government has not defined difficult and remote areas. However, from close scrutiny of the Proviso to Regulation 9 of the Regulations it is axiomatic that though the power has been given to the State Government/Competent Authority to define remote and difficult areas yet there is no requirement to issue a Notification under the Proviso to Regulation 9 of the Regulations. In the considered opinion of this Court, the expression "defined" used in the Regulations with regard to difficult and remote areas has been made only with the purpose of bringing to the notice of the public that Doctors serving in remote and difficult areas shall be entitled to benefit of additional marks by way of incentive as provided in Regulation 9 of the Regulations. Admittedly the State Government even prior to amendment of Regulation 9 of the Regulations in the year 2012 by virtue of enactment of SRO 401 dated 29.12.2009 has granted the benefit to the Medical Officers who have served in difficult areas. Admittedly the State Government even prior to amendment of Regulation 9 of the Regulations in the year 2012 by virtue of enactment of SRO 401 dated 29.12.2009 has granted the benefit to the Medical Officers who have served in difficult areas. In other words, the State Government has identified the difficult and remote areas, which is also discernible from SRO 201 of 2006. The difficult areas have been identified by the State Government on the strength of the guidelines provided under Regulation 41-A(i) of the Jammu and Kashmir Civil Service Regulations, 1956. The expression "remote areas" used in the Regulations has to be understood with purposive sense to mean those areas which are out of way, far of, secluded and are difficult to access due to which Doctors are reluctant and willing to serve in those areas. It is pertinent to note that Proviso to Regulation 9 does not speak of issuance of notification with regard to remote and difficult areas but the same simply state that the remote and difficult areas shall be defined by the State Government/Competent Authority from time to time. In the peculiar fact situation of the case, at least so far as examination of this year is concerned, we are inclined to hold that since the State Government had already identified the remote areas and the Regulation 9 of the Regulations being mandatory and binding on the 'State Government, the Medical Officers who have rendered their services in remote areas are entitled to benefit of Regulation 9 of the Regulations, especially in view of public notice issued by the Jammu and Kashmir Board of Professional Entrance Examination dated 24.01.2017, the relevant extract of which reads as under: "The rural service seats/difficult area service shall be filled up strictly in accordance with the rules on the subject including MCI regulation proviso 9(2)d read with the Hon'ble Supreme court judgment in the case titled Dinesh Singh Chauhan v. State of U.P. and ors. (The relevant extract of the MCI regulations and the Hon'ble Supreme Court judgment is available on the BOPEE website and the candidates are advised to go through these in their own interest)." Besides that, the State Health Society of National Rural Health Mission has identified remote, inaccessible, very difficult and difficult areas in the State of Jammu and Kashmir with a view to ensure availability of Doctors in the aforesaid areas, which have been mentioned in operation guidelines for the year 2013-2014 issued by the Director Health Services, Kashmir. The aforesaid document has been produced on behalf of the respondents and the same is taken on record as its authenticity beyond any pale of doubt. In the result, we hold that Regulation 9 of the Regulations, would apply in respect of the National Eligibility-cum-Entrance Test held this year bearing in mind the mandate of Regulation 9 of the Regulations and in view of identification of remote and difficult areas by the State Government which is not required to be defined necessarily under Regulation 9 of the Regulations, which even otherwise would be in consonance with the object and spirit of Regulation 9 of the Regulations. It is pertinent to mention here that Board of Professional Entrance Examination had taken up the issue with regard to eligibility of the Medical Officers under rural Service/difficult areas service. However, no action was taken by the State Government, therefore, the Board of Professional Entrance Examination by communication dated 25.02.2017 was pleased to clarify that on receipt of clarification from the Government, decision shall be incorporated appropriately and such decision shall be notified. Thereafter from perusal of communication dated 03.03.2017 it is evident that the issue relating to difficult and rural areas was discussed in detail and despite large number of communications sent by the Board of Professional Entrance Examination, no response from the State Government was received. Therefore, the Board of Professional Entrance Examination vide notification dated 03.03.2017 issued the select list and decided to grant the benefit of SRO 401. Thus, it is evident that the State Government did not take any action with regard to defining of remote and difficult areas and for in action on the part of the State Government, the Medical Officers cannot be allowed to suffer. 15. Thus, it is evident that the State Government did not take any action with regard to defining of remote and difficult areas and for in action on the part of the State Government, the Medical Officers cannot be allowed to suffer. 15. The National Rural Health Mission is a Society registered under the Societies Registration Act and perform public duty, therefore, on the touchstone of the parameters law laid down in Paragraph 29 by the Supreme Court in the case of Binny Ltd. and another v. V. Sadasivan & others, (2005) 6 SCC 657 , the same would satisfy the test, of public authority. Even otherwise the issue with regard to status of National Rural Health Mission as a public authority need not detain us as in the document annexed with the writ petition, the State Government itself has described Director, National Rural Health Mission Jammu and Kashmir as public authority. Accordingly, the aforesaid issue is answered. 16. So far as issue No. 3 is concerned, in view of discussion with regard to issue Nos. (i) and (ii), the respondents would be entitled to the benefit of Regulation 9 of the Regulations. Accordingly, issue No. (iii) is answered. 17. However, we make it clear that in case the State Government feels, that any clarification with regard to difficult and remote areas is required, the State Government shall be free to approach Medical Council of India and shall positively identify the difficult and remote areas well before the next National Eligibility-cum-Entrance Test. For this Examination, we direct the appellant herein to accord the benefit of Regulation 9 of the Regulations as the difficult and remote areas have already been identified by the State Government, which is evident from Regulation 41-A(i) of the Jammu and Kashmir Civil Service Regulation, 1956. Therefore, we agree with the conclusion recorded by the learned Single Judge, but for different reasons which we have recorded supra. 18. During the course of the submissions it is stated at the Bar that after the ad-interim order passed by this Court on 03.05.2017, the appellants herein have held the counselling and have prepared the provisional merit list, which has been made subject to outcome of this LPA. 18. During the course of the submissions it is stated at the Bar that after the ad-interim order passed by this Court on 03.05.2017, the appellants herein have held the counselling and have prepared the provisional merit list, which has been made subject to outcome of this LPA. In view of preceding analysis, we direct the appellants herein to grant the benefit of Regulation 9 of the Regulations to the Medical Officers who have served in difficult areas as defined in SRO 201 of 2006 and to redraw the merit list and thereafter to hold fresh counselling and to allot the seats. Let the aforesaid process be completed on or before 31st of May, 2017 as per the time schedule fixed by the Supreme Court; With the aforesaid directions, the Appeals are disposed of.