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2017 DIGILAW 301 (UTT)

Darshana Gaira v. State of Uttarakhand

2017-05-31

ALOK SINGH, V.K.BIST

body2017
JUDGMENT : V.K. Bist, J. 1. Since in these writ petitions common question of law arise, we are disposing of the same by the following common judgment. 2. Prayers in the Writ Petition (S/B) No.195 of 2017 are as follows:- “(i). Issue a writ, order or direction in the nature of certiorari quashing the impugned Order No. 576/XXVIII(1)/2017-writ-2016/2017 dated 12.05.2017, whereby the Respondent No. 1 has taken a decision to not to grant 10% of marks for each of service in remote/inaccessible areas as an incentive to the in service Doctors while granting admission to P.G. Degree Course. (ii). Issue a writ, order or direction in the nature of Mandamus commanding the respondents to strictly comply with Regulation9(2)(d) of the Post Graduate Medical Education Regulations, 2000 and to accordingly grant the petitioner 10% of the marks obtained for each year in service in remote or difficult areas, as an incentive while determining the merit and granting admission in Post Graduate Degree Courses in the ongoing admission process. (iii). Issue a writ, order or direction in the nature of Mandamus commanding the respondents to forthwith stop the ongoing second round counseling and respondent No. 6 may be restrained from allotting any seat in the second round of counseling, till further orders of this Hon’ble Court’s. (iv). Issue a writ, order or direction in the nature of Mandamus commanding the respondents to revise the First Round of Counseling after duly providing weightage of 10% for each year of service in remote areas undertaking by the petitioners (as per Regulation 9(2) (d) of the Post Graduate Medical Education Regulations, 2000) and further forbear from holding the Second Round of Counseling till the grant of weightage of 10% for each year of service in remote areas undertaken by the petitioner (as per Regulation 9 (2) (d) of the Post Graduate Medical Education Regulations, 2000).” 3. Prayers in the Writ Petition (S/B) No.190 of 2017 are as follows:- “(i). Issue a writ, order or direction in the nature of certiorari quashing the order no. 441/XXVIII(1)/2007-150/2005 II cover T.C. dated 12.04.2017 (Annexed as Annexure No. 1 to this writ petition) whereby the Respondent No. 1 has taken a decision to not to grant 10% of marks for each of service in remote/ inaccessible areas as an incentive to the in service Doctors while granting admission to P.G. Degree Course. (ii). 441/XXVIII(1)/2007-150/2005 II cover T.C. dated 12.04.2017 (Annexed as Annexure No. 1 to this writ petition) whereby the Respondent No. 1 has taken a decision to not to grant 10% of marks for each of service in remote/ inaccessible areas as an incentive to the in service Doctors while granting admission to P.G. Degree Course. (ii). Issue a writ, order or direction in the nature of Mandamus commanding the respondents to strictly comply with Regulation 9(2)(d) of the Post Graduate Medical Education Regulations, 2000 and to accordingly grant the petitioner 10% of the marks obtained for each year in service in remote or difficult areas, as an incentive while determining the merit and granting admission in Post Graduate Degree Courses in the ongoing admission process. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to revise the First Round of Counseling after duly providing weightage of 10% for each year of service in remote areas undertaken by the petitioners (as per Regulation 9(2)(d) of the Post Graduate Medical Education Regulations, 2000) and further forbear from holding the Second Round of Counseling till the grant of weightage of 10% for each year of service in remote areas undertaken by the petitioners (as per Regulation 9(2)(d) of the Post Graduate Medical Education Regulations, 2000). 4. Prayers in the Writ Petition (S/B) No.221 of 2017 are as follows:- (i). Issue a writ, order or direction in the nature of certiorari quashing the impugned Order No. 589/XXVIII(1)/2017-writ-182017 dated 15-05-2017 (Annexed as Annexure No. 1 to this writ petition) whereby the Respondent No. 1 has taken a decision not to grant 10% of marks for each of service in remote/ inaccessible areas as an incentive to the in-service Doctors while granting admission to P.G. Degree Course. (ii). Issue a writ order or direction in the nature of certiorari quashing the Uttarakhand State NEET P.G.-2017 Centralised Counseling (For admission to the Academic Session 2017-18) to the extent of non-inclusion of incentive to the in-service doctors servicing in remote areas of the State, and further issue direction to grant the benefit of incentive for each year, as was earlier given by the State Government as per UKPGMEE- 2016 (Uttarakhand Post Graduate Medical and Dental Entrance Examination, 2016) for admission to Academic Session 2016-2017. (iii). (iii). Issue a writ, order or direction in the nature of Mandamus commanding the respondents to strictly comply with Regulation 9(2)(d) of the Post Graduate Medical Education Regulations, 2000 and to accordingly grant the petitioner 10% of the marks obtained for each year in service in remote or difficult areas, as an incentive while determining the merit and granting admission in Post Graduate Degree Courses in the ongoing admission process. (iv). Issue a writ, order or direction in the nature of Mandamus commanding the respondents to revise the First Round and second round of Counseling after duly providing weightage of 10% for each year of service in remote areas undertaking by the petitioners (as per Regulation 9(2) (d) of the Post Graduate Medical Education Regulations, 2000) and further forbear from holding the Second Round of Counseling till the grant of weightage of 10% for each year of service in remote areas undertaken by the petitioner (as per Regulation 9 (2) (d) of the Post Graduate Medical Education Regulations, 2000).” 5. Facts, in brief, are that petitioners took admission in MBBS Course in Sushila Tiwari Government Medical College, Haldwani, after qualifying the requisite competitive examination. The petitioners were made to execute a bond that after completing the MBBS Course, they will have to serve in the remote areas of the State for a period of 5 years. Petitioner in Writ Petition No.195 of 2017 (S/B) qualified her MBBS Course in the year 2013 and her internship in the year 2014. She was provided contractual employment in a remote area w.e.f. 15.04.2014. Thereafter, she participated and got selected for regular appointment in Provincial Medical Health Services of the State. She is working in the regular cadre w.e.f. 18.04.2015. 6. Petitioners in Writ Petition No.190 of 2017(S/B) were also asked to execute surety bond in 2012 which was in set format and which was signed by the petitioners, wherein the condition of serving the State Government for a minimum period of five years after completing MBBS Course was mentioned. In the event of failure of above condition, petitioners were to refund a lumpsum of Rs.30.00 Lacs as damages. Vide order dated 3.3.2014, petitioners were asked to render their services as Lady Medical Officer, Community Health Centre, Beleshwar, Block Bhilangana, District Tehri Garhwal and Medical Officer, State Allopathic Dispensary, Dhaun Champawat, District Champawat, respectively. In the event of failure of above condition, petitioners were to refund a lumpsum of Rs.30.00 Lacs as damages. Vide order dated 3.3.2014, petitioners were asked to render their services as Lady Medical Officer, Community Health Centre, Beleshwar, Block Bhilangana, District Tehri Garhwal and Medical Officer, State Allopathic Dispensary, Dhaun Champawat, District Champawat, respectively. These petitioners were also selected through Public Service Commission and are working in the State Medical Services as Provincial Medical Health Services as permanent medical officers. 7. Petitioner in Writ Petition No.221 of 2017 (S/B) also signed the required bond and vide order dated 21.03.2013, he was asked to undergo compulsory contractual service at Additional Government Primary Health Centre, Jyosura, Block Okhalkanda, District Nainital. Subsequently, he was recommended by the Public Service Commission for permanent post of medical officer and vide order dated 25.03.2015, he was appointed and posted at same place. 8. It is the case of the petitioners that Medical Council of India Regulations provides that 10% of the marks obtained for each year of service in remote or difficult areas shall be provided as weightage while determing the merits and entrance test for post graduate admission. The petitioners have served in remote/inaccessible areas for 3 years. The petitioners have qualified the National Eligibility-cum-Entrance Test Postgraduate, 2017 and the counseling for admission in different colleges in the State of Uttarakhand is presently going on. 9. Petitioner Darshana Gaira in WPSB No.195 of 2017 approached this Court by filing WPSB No.84 of 2017. On the consent of respondent counsel that petitioner’s representation will be decided on the same day, the Court passed an order on 12.04.2017 directing the respondent no.1 to take a decision on petitioner’s representation within one day, with regard to providing of marks as per the MCI Regulations. In compliance thereof, respondent no.1 passed an order on the selfsame day and declined to grant 10% marks to the petitioner as provided in the MCI Regulations. Being aggrieved by the said order, the petitioner filed another Writ Petition being numbered as WPSB No.159 of 2017. Said writ petition was disposed of vide order dated 11.05.2017 with the observation that after petitioner obtained regular appointment and joined, she could not have been denied the benefit and the respondent no.1 was directed to consider the matter afresh after taking into account the period of service which she had discharged after her regular appointment. Said writ petition was disposed of vide order dated 11.05.2017 with the observation that after petitioner obtained regular appointment and joined, she could not have been denied the benefit and the respondent no.1 was directed to consider the matter afresh after taking into account the period of service which she had discharged after her regular appointment. Paragraphs 6 & 7 of the judgment dated 11.05.2017 are relevant which reads as under: “6. Counter affidavit has been filed. Subsequent to the original appointment, which was made under a contract, there is no dispute that the petitioner was selected by the Public Service Commission and was given appointment and she joined in the year 2015. As far as serving the Government under a contract qualifying for the benefit under the Regulation is concerned, learned counsel for the petitioner does not establish before us any case and it is not being pressed before us. But what is being pressed before us is only the period of service after the petitioner joined pursuant to her selection by the Public Service Commission. Since, we are not exactly posted with the actual date, on which the petitioner joined service, we are not making any finding in regard to that and having regard to the course, we intend to adopt. As far as the service after joining pursuant to her selection by the Public Service Commission is concerned, this aspect has not received the attention of the Government Secretary. Apparently, the officer has proceeded on the basis that there is no provision in the bond, which the petitioner has indeed executed when she got admission for MBBS and which education she received under a concessional fee that she will serve for a certain number of years. It may be true that in the said bond there is no reference to availability of the benefit of the Regulation relating to marks at the rate of 10% of the marks obtained in the exam for each year, but the mere fact that it is not mentioned may not stand in the way of a candidate, who is an in-service candidate, working after getting regular selection claiming benefit. This will be different from a contractual employee claiming the benefit. As already noticed, petitioner has not pressed the argument relating to benefit of the Regulation based on contractual appointment. This will be different from a contractual employee claiming the benefit. As already noticed, petitioner has not pressed the argument relating to benefit of the Regulation based on contractual appointment. But after admittedly petitioner obtained appointment and joined, she could not have been denied the benefit. There is no dispute about the joining letter being issued on 18.04.2015. We also heard learned counsel for the Medical Council of India, who also took the stand that the Regulations are mandatory. 7. In the light of this, we cannot sustain Annexure No. 1 order. Annexure No. 1 is quashed. The first respondent will consider the matter afresh taking into account the period of service petitioner has, after she joined pursuant to the joining letter given on 18.04.2015 and consider her eligibility for the marks in terms of the proviso, which is already referred to in the impugned order. A decision in this regard will be taken as early as possible and at any rate within a period of 24 hours from today and the same will be immediately communicated to the sixth respondent, who will take action as per law. This we do, as we are informed that the second round of counseling is to take place day after tomorrow i.e. on 13.05.2017.” 10. In compliance of above judgment, respondent no.1 passed an order on the next date i.e. on 12.05.2015, and declined to grant benefit of 10% of marks to the petitioner as provided in the MCI Regulations. In its order, respondent no.1 observed that petitioner is in regular government service since 18.04.2015 but she has executed a bond for rendering mandatory five years contractual service, as such, she cannot be granted benefit of 10% marks. Respondent no.1 also clarified that first and second round of All India Counseling is already over and the second round of State Counseling is to commence from 13.05.2017 and the eligible candidates have already been allotted seats and the Hon’ble Apex Court has already directed that the counseling should be conducted within a time schedule and any change in allotment of seat at this point of time would affect the entire counseling process and would further attract possibility of filing of various cases which could again lead to cropping of odd situation. On the basis of this reasoning, the representation of the petitioner has been rejected. 11. Heard Mr. D.S. Patni, Mr. On the basis of this reasoning, the representation of the petitioner has been rejected. 11. Heard Mr. D.S. Patni, Mr. Piyush Garg, and Mr. M.S. Rawat Advocates for the petitioners, Mr. M.C. Pande Additional Advocate General with Mr. H.M. Bhatia, Brief Holder for the State of Uttarakhand, Mr. Parikshit Saini, Advocate for the Medical Council of India, Mr. Shailendra Nauriyal and Mr. N.S. Pundir, Advocate for H.N.B. Uttarakhand Medical Edcuation University and Mr. Sandeep Tiwari and Ms. Anjali Bhargava, Advocates for the interveners. 12. Learned counsel for the petitioners submitted that, in the year 2016-2017, the State Government granted weightage to the Doctors working in the remote area; but, no such weightage is being given in the year 2017-18. They submitted that no reasons have been given by the respondents as to why they are not granting weightage during this year. It is also submitted that there is no conscious decision by the State Government in this regard. Rather, the State Government has not taken any decision in the matter. Learned counsel for the petitioners submitted that perusal of the impugned order dated 12.05.2017 makes it clear that it is not in dispute that in terms of the Regulation 9(IV) of the M.C.I. Regulation, a candidate, who has served in difficult and very difficult area are entitled for certain concession as incentive in the marks upto 10% each year upto a maximum of 30% for the three years in-service rendered by such candidates in remote area. They submitted that the Secretary has simply contended that once the candidate has taken benefit of concessional fee by signing the bond with the State Government, taking the benefit in the fee structure i.e. concessional fee, another benefit as benefit of incentive will amount to double benefit and same is not permissible. They submitted that the stand taken by the State Government is not sustainable. He submitted that it is not in dispute that the regulation issued by the M.C.I. are mandatory in nature as held by the Hon’ble Supreme Court in the case of State of U.P. vs. Dinesh Singh Chauhan, reported in (2016) 9 SCC 749 . They submitted that, in view of the decision rendered by the Hon’ble Supreme Court in the matter of State of U.P. vs. Dinesh Singh Chauhan, the State Government should have granted incentive of 10% marks. They submitted that, in view of the decision rendered by the Hon’ble Supreme Court in the matter of State of U.P. vs. Dinesh Singh Chauhan, the State Government should have granted incentive of 10% marks. He submitted that once the stand of the State Government is that M.C.I. Regulation are binding on it, in that event, the State Government is bound to extend the benefit to such candidates, who fulfill the condition contained in Regulation 9 (IV) . Learned counsel for the petitioners further submitted that the stand of the State Government regarding signing of bond by the candidates for serving in the State for five years in remote areas is not correct. They submitted that mere signing of bond and availing concessional fee cannot be the basis for debarring the petitioners and other applicants from seeking benefit of Regulation 9 (IV) of the M.C.I. Regulations, unless expressly stated in the bond. They submitted that in the bond, no such condition was mentioned. Mr. D.S. Patni relied on paragraph nos. 12, 47 & 49 of the judgment of the Hon’ble Apex Court, in the matter of State of U.P. vs. Dinesh Singh Chauhan, reported in (2016) 9 SCC 749 , which are being reproduced below: “10. The learned Attorney General representing the State Government, in all fairness, stated that he was not in a position to resile from the statement already made on behalf of the State Government as recorded in the order on 12.05.2016, but wanted this Court to consider the anomalous situation created because of the fresh merit list; and to overcome that difficulty, it would be advisable to allow the State Government to restore the position as it existed prior to the issuance of the Government Order dated 28.02.2014 - so that admission to all Post Graduate Degree Courses can be made on the basis of merit as per the marks obtained in the Common Entrance Examination. That would result in upholding the impugned decision dated 07.04.2016. This argument has been supported by one section of applicants in the accompanying impleadment applications. 47. We must hold that the High Court was justified in quashing the stated Government Order providing for reservation to in- service candidates, being violative of Regulation 9 as in force. That would result in upholding the impugned decision dated 07.04.2016. This argument has been supported by one section of applicants in the accompanying impleadment applications. 47. We must hold that the High Court was justified in quashing the stated Government Order providing for reservation to in- service candidates, being violative of Regulation 9 as in force. However, we modify the operative direction given by the High Court and instead direct that admission process for Academic Year 2016-17 onwards to the Post Graduate Degree Course in the State should proceed as per Regulation 9 including by giving incentive marks to eligible in-service candidates in terms of proviso to Clause IV of Regulation 9 (equivalent to third proviso to Regulation 9(2) of the Old Regulations reproduced in the interim order dated 12th May 2016). Page 53 53 We, accordingly, mould the operative order of the High Court to bring it in conformity with the direction contained in the interim order dated 12th May, 2016 but to be made applicable to Academic Year 2016-17 onwards on the basis of Regulation 9 as in force. We are conscious of the fact that this arrangement is likely to affect some of the direct candidates, if not a large number of candidates whose applications were already processed by the competent Authority for concerned Post Graduate Degree Course for Academic Year 2016-17. However, their admissions cannot be validated in breach of or disregarding the mandate of Regulation 9, as in force. The appeals against the judgment of the High Court of Judicature at Allahabad dated 7th April, 2016 are disposed of accordingly. 49. In so far as Writ Petition No.372/2016 even that should fail as we have held Regulation 9 to be a complete Code and a provision for determining inter-se merit of the candidates including by giving weightage of marks as incentive to eligible in-service candidates who have worked in notified remote or difficult areas in the State, which is just, reasonable and necessary in larger public interest.” 13. Learned counsel for the petitioners then prayed that respondents be directed to hold a fresh counseling after providing weightage as provided in Regulation 9(IV). 14. Mr. M.C. Pandey, learned Additional Advocate General appearing for the State submitted that impugned order 12.05.2017 was passed in good faith. It is neither malafide nor arbitrary. Learned counsel for the petitioners then prayed that respondents be directed to hold a fresh counseling after providing weightage as provided in Regulation 9(IV). 14. Mr. M.C. Pandey, learned Additional Advocate General appearing for the State submitted that impugned order 12.05.2017 was passed in good faith. It is neither malafide nor arbitrary. He further submitted that benefit is not being given to anyone and no one is discriminated. He further submitted that though the MCI Regulations are mandatory, but in the said Regulations, word ‘may’ clarifies this fact that it is for the appropriate Government either to grant such incentive or not. He further submitted that petitions are not maintainable as the petitioners have already got admission in MS/MD Course in one branch or another. He further submitted that petitioners want benefit of this Regulation and want that they should be given incentive of 10% marks and seat of their choice be offered to them, but in that case, the petitioners should implead the candidates who have been allotted those seats. He further submitted that the State Government has taken a specific plea in the supplementary counter affidavit that petitioners have not challenged the prospectus for the year 2016-17, and this plea has remained unrebutted as no supplementary rejoinder affidavit has been filed by the petitioner, therefore, the petitioners cannot be granted any relief. 15. Mr. Parikshit Saini, learned counsel for the Medical Council of India submitted that the said Regulations framed by the MCI are mandatory in nature. He further submitted that no admission in P.G. Course can be given except as process prescribed in Regulation 9. He further submitted that though the Regulations are mandatory but a particular regulation is to be seen carefully. He submitted that there is word ‘may’ in the proviso to the said Regulation, therefore, it is discretionary for the Government, and in the present case, the State Government has decided not to exercise their power and not to give incentive, therefore, the State cannot be compelled to give such incentive. 16. Mr. Sandeep Tiwari, learned counsel for the interveners opposed the writ petitions. He submitted that in the Brochures for the year 2016-17, weightage is not provided, but, simply it is provided that 10% of seat of MD/MS will be reserved, and in view of the judgment of the Hon’be Supreme Court in the matter of State of Haryana vs. Dr. Mr. Sandeep Tiwari, learned counsel for the interveners opposed the writ petitions. He submitted that in the Brochures for the year 2016-17, weightage is not provided, but, simply it is provided that 10% of seat of MD/MS will be reserved, and in view of the judgment of the Hon’be Supreme Court in the matter of State of Haryana vs. Dr. Narender Soni & Ors, the Government has not rightly reserved any seat. Therefore, question of grant of weightage does not arise and any kind of weightage at this stage would amount to amendment in the Brochure which is not permissible. He further submitted that judgment relied upon by the learned counsel for the petitioners will not help them, as in that matter the State of U.P. gave its no objection for de novo counseling. Further, the State counsel itself gave consent in the matter but in the present case, situation is entirely different. He relied upon paragraphs 15 & 17 of the State of Haryana vs. Dr. Narender Soni & Ors, which reads as under: “15. The conduct of the State in issuance of the notification dated 05.05.2017 based on no data, formulation of the same in a day, implementation before publication in the Gazette, after publication of the NEET, reflects inadequate preparation by the State, acting more in the nature of a knee jerk reaction to situations. It does not meet the approval of the Court. The proviso to Regulation 9(IV) is not a compulsion but an enabling provision vesting discretion in the State. Any discretionary power has to be exercised fairly, reasonably and for the purpose for which the power has been conferred. The observations of the High Court meet our approval. 17. In the peculiar facts and circumstances of the case, the State of Haryana, if it wishes to give weightage for admission in postgraduate courses under the proviso to Regulation 9(IV), it must come out with a fresh notification identifying remote and/or difficult areas as discussed in the present order, within one week from today and to facilitate the same, the last date for admission is extended to 10th of June, 2017.” 17. We find that earlier petitioner Dr. Darshana Gaira filed writ petition before this Court. We find that earlier petitioner Dr. Darshana Gaira filed writ petition before this Court. The Secretary, Government of Uttarakhand was directed to take decision with regard to providing of marks to be given as incentive at the rate of 10% marks in each year of service in the remote areas. In compliance of that order, the Secretary passed an order on 12.04.2017 and rejected her representation by holding that the petitioner executed bond and availed discount in fees earlier. There was no condition in the bond that at the time of admission in P.G. Course, 10% weightage will be given to the students, who had filled up the bond. On this ground, the Secretary held that petitioner cannot be provided discount in P.G. Course. That order was challenged by the petitioner Dr. Darshana Gaira in WPSB No. 159 of 2017. The Court dealt the matter in following manner: “It may be true that in the said bond there is no reference to availability of the benefit of the Regulation relating to marks at the rate of 10% of the marks obtained in the exam for each year, but the mere fact that it is not mentioned may not stand in the way of a candidate, who is in service candidate, working after getting regular selection claiming benefit. This will be different from a contractual employee claiming the benefit. As already noticed, petitioner has not pressed the argument relating to benefit of the Regulation based on contractual appointment. But after admittedly petitioner obtained appointment and joined, she could not have been denied the benefit.” 18. Thereafter, this Court in WPSB No. 159 of 2017 passed an order on 11.05.2017 directing the Secretary to take a fresh decision after taking into account the period of service petitioner has (as regular Government doctor), after she joined pursuant to the joining letter given on 18.04.2015 and to consider her eligibility for the marks in terms of the proviso, which is already referred to in the impugned order. The Secretary again decided her representation and rejected the same. The Secretary again decided her representation and rejected the same. This time, he rejected the claim of the petitioner by holding that in the agreement (bond) executed by the petitioner in respect of necessary Government service in furtherance of her admission in the M.B.B.S. Course at a concessional rate, it was nowhere mentioned that if the petitioner applies in respect of admission in P.G. course, then she would be provided 10% marks as incentive for each year of service in remote and inaccessible hill areas of the State done by her in compliance of the necessary Government service bond. 19. In our view, the Secretary was ill advised while deciding the representation. The aforesaid reasoning should not have find place in his order in view of the finding given by this Court, in this regard, in WPSB No. 159 of 2017. We again reiterate that this reasoning given by the Secretary is not at all correct. If doctor is entitled for weightage, then simply by filing of bond for serving in the State for a period of five years, his/ her right cannot be denied. By the order dated 11.05.2017, this Court clearly observed that after obtaining appointment (on regular basis), petitioner Dr. Darshna Gaira could not have been denied the benefit. Another reason given by the Secretary is that the provisions of M.C.I. Notification NO. MCI18(1)/2010 MED/62052 dated 15.02.2012 published in the Gazette of India Part III Division IV dated 27.02.2012 are not binding upon the State Government. This finding is also totally incorrect; rather, this has been admitted by the learned Additional Advocate General as well as by the counsel appearing for the M.C.I. that M.C.I. Regulations are binding and are mandatory in nature. The Secretary also observed in his order that the Hon’ble Supreme Court in its order dated 16.08.2012 passed in Civil Appeal No. 8047 of 2016, ‘State of U.P. v. Dinesh Singh Chauhan’ has held any sort of reservation for in-service medical officer to be unconstitutional. We think that the case in hand is not related to reservation. 20. In our view, it would be wrong to say that weightage cannot be and should not be given to those doctors, who are working and who have worked in remote areas for certain period. In State of Uttarakhand, out of 13 districts, 10 districts are situated in hill areas. 20. In our view, it would be wrong to say that weightage cannot be and should not be given to those doctors, who are working and who have worked in remote areas for certain period. In State of Uttarakhand, out of 13 districts, 10 districts are situated in hill areas. Few dispensaries are situated at remote areas where nobody wants to go. It is known fact that the State of Uttarakhand is facing great hardship in getting the Government Doctors for these places. If at some point of time, State Government makes a policy to give some weightage to such doctors, who are working in remote areas and are serving those people, who have no medical facilities, such decision cannot be said to be an arbitrary and unreasonable decision. Such decision will always be said to be a decision of the State Government taking into account the public interest. From the perusal of this Court’s order dated 11.05.2017 in WPSB No. 159 of 2017, it is clear that benefit is given only to those doctors, who are permanent government employees and also for the period they have served as permanent doctor. The doctors, who are working on contractual basis on the basis of the bond filled by them, are not entitled for the weightage for the period they have worked on contract basis. 21. Another reason given by the Secretary, rejecting the representation, is that the first and second round of All India Counseling and first round of State Counseling have already been done and the second round of counseling is commencing from 13.05.2017 and the eligible candidates have already been allotted seats by way of those rounds of counseling. The counseling is to be done within the time schedule and in case any change is made in the allotment of seats in P.G. course, then there will be probability of filing of several petitions, which would give rise to odd situation. We find that this reasoning is also not a valid reasoning for denying benefit to the petitioners. 22. Another ground given by the Secretary is that 50% of the doctors are from the doctors, who had executed bond. This ground is also not a valid ground for rejecting the representation that only few doctors will go for P.G. courses. 23. We find that this reasoning is also not a valid reasoning for denying benefit to the petitioners. 22. Another ground given by the Secretary is that 50% of the doctors are from the doctors, who had executed bond. This ground is also not a valid ground for rejecting the representation that only few doctors will go for P.G. courses. 23. Now, we have to consider, whether petitioners are entitled for weightage as provided in Regulation 9(IV) of the M.C.I. Regulations. Learned counsel for the respondents advanced three arguments in this regard. First, benefit of weightage is not being given to anyone and no one is discriminated; another argument is that though the M.C.I. Regulations are mandatory, but word ‘may’ mentioned in the provision to the said Regulation empowers the State Government to exercise its discretion and, in the present case, the State Government has decided not to exercise its power and not to given incentive. Therefore, the Government cannot be compelled to give such incentive. Another argument is that the Brochure for the year 2017-18 has not been challenged. Therefore, the petitioners are not entitled for any relief. 24. We have carefully gone through the order passed by the Secretary, Government of Uttarakhand dated 12.05.2017. In preceding paragraphs, we have held that the reasoning given by the Secretary is not valid reasoning for rejection of the representation of the petitioner. The Secretary has not rejected the claim of the petitioner on the ground that there is no policy of the State Government for grant of weightage to the doctors. He simply said in his rejection order that petitioners are not entitled for weightage due to reasoning which he has given in his order. 25. It has been argued by the learned counsel for the M.C.I. that word ‘may’ is discretionary for the Government because the power to the Government is discretionary as also held by the Hon’ble Supreme Court in the matter of State of Haryana and another vs. Dr. Narender Soni and others; but, we find that Secretary has nowhere said that the State Government has taken any decision not to give weightage to anyone. As already said, Secretary has simply said that the petitioners are not entitled. 26. We find that brochure for the year 2017 has not been challenged by the petitioner. Narender Soni and others; but, we find that Secretary has nowhere said that the State Government has taken any decision not to give weightage to anyone. As already said, Secretary has simply said that the petitioners are not entitled. 26. We find that brochure for the year 2017 has not been challenged by the petitioner. We would have rejected the claim of the petitioner on this ground alone; but, we are confronted with the judgment and order passed by this Court on 11.05.2017 in WPSB No. 159 of 2017 in the case of Dr. Darshana Gaira. In that case, this Court has held that after obtaining appointment and joining (on permanent basis after duly recommended by the Public Service Commission), she could not have been denied the benefit. In that case, the Court also directed the first respondent to consider the matter afresh taking into account the period of service petitioner (Dr. Darshana Gaira) has, after she joined pursuant to the joining letter given on 18.04.2015 and consider her eligibility for the marks in terms of the provision, which was already referred to in the impugned order. 27. It is admitted to everybody that the judgment passed by this Court in WPSB No. 159 of 2017 dated 11.05.2017 has neither been challenged in the higher Court nor any review petition has been filed. In such circumstances, the order passed by this court on 11.05.2017 is binding on the respondents including the Secretary, Government of Uttarakhand. 28. The relief, which has already been granted in WPSB No. 159 of 2017 cannot be denied and the present writ petitions of the petitioners cannot be dismissed. Rather, the petitioners are entitled for the reliefs claimed. The petitioners are entitled for the weightage for the period they have served in the Government; but, since counseling is about to close, the petitioners can be admitted only against those seats which are vacant and not against those seats, which have been filled up by others, who are not before us and who have not been made party. 29. We think that it would not be appropriate to direct the respondents to hold de novo counseling at this stage; but, we are directing that the benefit of weightage be given to the petitioners only and not others who have not approached the Court. But, benefit would be given against those seats, which are vacant. 30. 29. We think that it would not be appropriate to direct the respondents to hold de novo counseling at this stage; but, we are directing that the benefit of weightage be given to the petitioners only and not others who have not approached the Court. But, benefit would be given against those seats, which are vacant. 30. In view of the above discussion, the writ petitions are partly allowed in the following manner: (I). Impugned orders are hereby quashed. (II). Respondents are directed to grant weightage of 10% marks as provided in Regulation 9(2)(d) of the Post Graduate Medical Education Regulations, 2000 to the petitioners only. (III). Petitioners will be offered only those seats, which are lying vacant and they will have no claim against those seats, which have been given to others and on which admissions are over. 31. There will be no order as to costs. 32. Let a copy of this judgment be supplied to the counsel for the parties without any delay today itself. 33. Let a copy of this judgment be placed in all the connected writ petitions.