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2017 DIGILAW 838 (JHR)

Umendra Kumar v. State of Jharkhand

2017-05-09

APARESH KUMAR SINGH

body2017
ORDER : Heard counsel for the petitioner and the respondents. 2. These two petitioners have been denied counselling despite ranking 1st and 2nd in the first merit list prepared by the Jharkhand Combined Entrance Competitive Examination Board-respondent no.4 on 8th April 2017. The respondent no.4 invited applications as per notice dated 17th March 2017 (Annexure-4) for preparing State merit list and conduct of the counseling from eligible candidates who had appeared in NEET PG-2017/NEET MDS 2017 and fulfill the following eligibility criteria : (a) The candidates must have passed MBBS/BDS Examination from any University/ Medical College of Jharkhand State. Or Those candidates who are resident of Jharkhand but admitted in MBBS/BDS course from any Medical College of erstwhile undivided Bihar or admitted in the session started from 2000/creation of Jharkhand State or admitted in Medical colleges of Bihar before the creation of Jharkhand State and has passed MBBS after the division of state may also apply as per Govt. of Jharkhand notification no.9/vividh-13-05/2012 65(9), Health/Ranchi, dated 07.05.2013. Those candidates who are under this provision have to produce Local/ Permanent Residential Certificate issued by concerned D.C./S.D.O. (Civil) of Jharkhand State. (b) The candidates must have completed the Rotating Internship or likely to complete by 31 March 2017. Reservation:-Reservation policy of Govt. of Jharkhand will be strictly followed at the time of counselling. The benefit of reservation of B.C.I and B.C.-II will be given to only those B.C.-I and B.C.-II candidates who have proper caste certificate and are not under the creamy layer. Certificate issued below the rank of than Sub Divisional Officer – (Civil) or Dy. Commissioner concerned district of Jharkhand State shall not be accepted and will lead to rejection of his/her claim. The caste certificate format is available under Downloads column of the Board's official website. Counselling will be held as per the letter no.7(A) Namankan-14.01.09/226 (7A) (dated 10.06.2011, resolution no. 230(9) dated 22.12.15 as amended resolution no. 154/Ranchi dated 11-04-2016 by Health, Medical Education and Family Welfare Department, Government of Jharkhand and judgment passed by Hon'ble Supreme Court in Civil Appeal No. 8047/16 dated 16.08.2016.” 3. The petitioner no.1 passed the MBBS from Nalanda Medical College, Patna under Magadh University in 2006 having enrolled in the Batch-2000 before bifurcation of the State from parant State of Bihar. Petitioner no.2 similarly passed MBBS from Darbhanga Medical College, Lahariasarai, Darbhanga under Lalit Narayan Mithila University in the year 1996. The petitioner no.1 passed the MBBS from Nalanda Medical College, Patna under Magadh University in 2006 having enrolled in the Batch-2000 before bifurcation of the State from parant State of Bihar. Petitioner no.2 similarly passed MBBS from Darbhanga Medical College, Lahariasarai, Darbhanga under Lalit Narayan Mithila University in the year 1996. (Certificates of MBBS enclosed as Annexure-1). It is also not in dispute that these petitioners are serving under the Government of Jharkhand and have produced certificates from the competent authority Annexure-S/3 series of having served in remote and difficult areas as notified by the State of Jharkhand under resolution dated 11th April 2016. It is also not in dispute that these two petitioners while facing the NEET PG 2017 examination had, in the NEET PG application form, declared themselves as domicile of the State of Bihar. It is further not in dispute that under the resolution no. 3198 dated 18th April 2016 [para-2(iii)] Annexure-10 containing the domicile policy of the Government of Jharkhand, the competent authority/Sub-Divisional Officer, Dumri, District Giridih has issued the certificate of local residents valid for all purposes to these two petitioners on 5th February 2017 and 9th April 2017 respectively vide Annexure-11 series. 4. However, on objections being made by certain candidates, their claims were verified and shown in the list of rejected candidates of P.G. Medical 2017 Annexure-7 serial no.20 and 81 respectively as they had declared their residential/domicile State as Bihar. 5. Much arguments have been advanced by the learned counsel for the petitioner and the respondent-State and the Board on the question of eligibility of these two petitioners under the notice dated 17th March 2017 read with notification no.38(9) dated 22nd March 2013 and its corrigendum dated 7th May, 2013 (Annexure-A to the counter affidavit of respondent no.4). Essentially the grounds for rejection of their candidature is their declaration as domicile of State of Bihar in the NEET application form. Respondents have taken the plea that having declared themselves as domicile of the State of Bihar, they cannot claim benefits available under the policy of the Government of Jharkhand in matters of admission to PG Diploma/degree courses in the State quota as they cannot be held to be local residents or domicile of the State of Jharkhand also. Respondents have taken the plea that having declared themselves as domicile of the State of Bihar, they cannot claim benefits available under the policy of the Government of Jharkhand in matters of admission to PG Diploma/degree courses in the State quota as they cannot be held to be local residents or domicile of the State of Jharkhand also. Learned senior counsel for the petitioners has categorically referred to the brochure of the NEET P.G. 2017 and submitted that as per Clause 16.3(B) after declaration of the NEET results, admission to the State quota seats, the final eligibility, the State category, benefit for in-service candidates, rural posting (if applicable), etc. shall be determined/generated by the designated agency/ authority/University of the concerned State as per applicable regulation and/or eligibility criteria, guidelines and applicable reservation policies. It is submitted that the petitioners fulfill the criteria under Clause-2(iii) of the resolution dated 18th April 2016 (Annexure-10) containing the domicile policy of the State as they are serving medical officers under the Government of Jharkhand. They also pledge not to claim the benefit of domicile/local residents of any State or Union territory other than Jharkhand as per the condition enumerated in the resolution and also incorporated in the certificates at Annexure-11. Having satisfied both the criteria the petitioners should not have been declared ineligible for participating in the counselling process for PG Diploma courses as in-service candidates having served in remote and difficult areas of the State for more than three years. 6. Apart from the aforesaid grounds, counsel for the petitioners has also referred to the judgment rendered by the Hon’ble Supreme Court in the case of Nikhil Himthani Vrs. State of Uttarakhand & Ors. reported in (2013) 10 SCC 237 and Vishal Goyal & Ors. Vrs. State of Karnataka & Ors. reported in (2014) 11 SCC 456 in support of their alternative argument that the eligibility criteria of residence/domicile does not stand the taste of constitutional validity in the light of the ratio rendered by the Hon'ble Supreme Court in the case of Pradeep Jain Vrs. Union of India reported in (1984) 3 SCC 654 . 7. Considered the submissions of the counsel for the parties, the relevant material facts pleaded and noted herein above. 8. Union of India reported in (1984) 3 SCC 654 . 7. Considered the submissions of the counsel for the parties, the relevant material facts pleaded and noted herein above. 8. The undisputed facts noted in the foregoing paragraphs makes three things clear :-(i) Both the petitioners have passed MBBS exam as per the criteria enumerated at Clause-A under notice dated 17.03.2017 issued by respondent no.4-Board from the erstwhile State of Bihar or enrolled prior to the bifurcation of the parent State of Bihar and completed their course i.e. petitioner no.2. (ii) They have also been serving in the State of Jharkhand in remote and difficult areas. (iii) The competent authority under the Government of Jharkhand i.e. the Sub-Divisional Officer, Dumri, Giridih has issued the certificate of local residents valid for all purposes recognizing them as residents of the State of Jharkhand in terms of resolution no.3198 dated 18th April 2016 issued by the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand. The contention of the respondents to the contrary is therefore not tenable in law. Declaration made in NEET PG form by these two petitioners would also not render them ineligible from participating in the counselling process under the State quota for admission to PG Diploma course as it is evident from the conditions incorporated in the NEET PG 2017 exam conducted by the National Board of Examination at Clause-16.3 that after declaration of the NEET results, admissions under the State quota would be governed by the applicable regulations and/or eligibility criteria, guidelines and applicable reservation policy of the concerned State. The declaration by the petitioners in the NEET PG application form in itself will not disentitle the petitioners if they satisfy the criteria of local residents/domicile of the State of Jharkhand under the resolution dated 18th April 2016 (Annexure-10). Once the competent authority has issued the certificate of local residents it is not open for the respondent-Board to reject their candidature and deny them permission to face the counselling for admission to PG Diploma course under the State quota. Petitioners have otherwise ranked 1st and 2nd and are also stated to be serving as medical officers in the Government of Jharkhand for more than three years in remote and difficult areas as declared by the policy dated 11th April 2016 of the State Government. 9. Petitioners have otherwise ranked 1st and 2nd and are also stated to be serving as medical officers in the Government of Jharkhand for more than three years in remote and difficult areas as declared by the policy dated 11th April 2016 of the State Government. 9. In such circumstances, this Court is not required to render any finding so far as the alternative argument made on behalf of the petitioners on the validity of the residents criteria is concerned. Moreover, the said criteria is not even under challenge in the present writ application. Accordingly, the impugned decision contained in letter nos.138 and 139 dated 14th April 2017 (Annexure-9 and 9/1) issued by the respondent no.4-Board is quashed. 10. Learned counsel for the Board submits that the counselling for remaining six seats of PG Diploma courses under State quota is to commence from 11th May 2017. Admission to rest of the seats have already been completed pursuant to the earlier counselling of the successful candidates in first round of counselling. None of the successful candidates, who have taken admissions, are impleaded nor are their admissions under challenge. Therefore, in view of the deadline prescribed by the Hon’ble Supreme Court in the matters of the admissions to P.G. degree/diploma courses, petitioners be allowed to participate in the counselling scheduled from 11th May 2017 for the remaining 6 seats of P.G. Diploma courses. Writ petition is accordingly allowed in the manner and to the extent indicated herein above.