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2020 DIGILAW 162 (RAJ)

State of Rajasthan v. Lokendra Choudhary

2020-01-20

MANOJ KUMAR GARG, SANGEET LODHA

body2020
JUDGMENT : 1. This intra court appeal is directed against order dated 24.7.18, whereby the writ petition preferred by the respondent seeking directions to award 143.40 marks as bonus/incentive marks (30% of 478 marks obtained by the respondent in NEET PG 2018) qua his working about six years two months continuously in the remote and difficult area, has been allowed. 2. The respondent was appointed as Medical Officer vide order dated 3.1.12 after due selection as per the procedure laid down under Rajasthan Medical & Health Service Rules, 1963. The respondent joined his duties at Primary Health Centre, Kood, Tehsil Bholpalgarh, District Jodhpur. He was being granted hard duty allowance inasmuch as, Primary Health Centre where he was discharging his duties as Medical Officer comes in the category of Remote/Difficult Areas. Being eligible, he appeared in NEET PG 2018 for admission to PG course. The State Government decided to award bonus marks 10%, 20% and 30% to the Medical Officers discharging duties for one year, two years and three years respectively in remote/difficult areas. In this regard, the notification dated 28.2.18 was issued, however, the Primary Health Centre, Kood was not included therein. Vide communication dated 12.3.18, the Chief Medical & Health Officer, Jodhpur recommended that since the Primary Health Centre, Kood is a remote area, the same deserves to be included in the category of Remote/Difficult Areas. 3. The Principal and Controller, SMS Medical College, Jaipur issued notification dated 15.3.18 scheduling time table for PG Medical Online Seat Allotments, in pursuance whereof, the respondent submitted his online registration form indicating that he has served six years and two months continuously in remote and difficult area. The college allotment list was uploaded by the Director, Medical & Health on 28.3.18 wherein, the respondent was awarded zero marks against the service of six years and two months rendered in remote and difficult area. Aggrieved by the action of the appellants in denying bonus marks, the respondent preferred a writ petition before this Court. 4. On 3.4.18, while issuing the notices of the writ petition as also of the stay petition, the learned Single Judge passed an interim order in favour of the respondent in the following terms: "Looking to the nature of issue raised in the present writ petition, it is directed that the counseling held for NEET PG 2018 pursuant to Annex. 4. On 3.4.18, while issuing the notices of the writ petition as also of the stay petition, the learned Single Judge passed an interim order in favour of the respondent in the following terms: "Looking to the nature of issue raised in the present writ petition, it is directed that the counseling held for NEET PG 2018 pursuant to Annex. 13 shall remain subject to the outcome of the present writ petition. It is further directed that the respondent no. 1 shall take action/decision based on the communication issued by the Chief Medical & Health Officer, Jodhpur for including the P.H.C., Kood in difficult area within a period of three days." 5. The State Government issued the notification dated 3.4.18 wherein Primary Health Centre, Kood was included in the category of remote/difficult area. Thus, the respondent became entitled for award of 143.40 bonus marks. The appellants published interim list dated 4.4.18 wherein the respondent name was included for award of bonus marks in lieu of three years service rendered by him in remote/difficult areas. However, in the list published on 5.4.18, the bonus marks were not added to the marks obtained by the respondent in NEET PG 2018. In these circumstances, the respondent preferred second stay petition before the learned Single Judge, wherein on 10.4.18, the learned Single Judge passed the interim order in favour of the respondent in the following terms: "In view of the submissions made, the respondent No. 6 is directed to take into consideration the notification dated 03.04.2018, wherein PHC Kud has been included in the notification dated 28.02.2018 and allot the marks to the petitioner in accordance with law and allot him the specialty based on the said marks." 6. Pursuant to the interim order passed by the learned Single Judge as aforesaid, after adding 30% bonus marks, the respondent was assigned the State Rank No. 393 in place of the earlier placement at serial No. 1013 and was allotted PG Diploma Course (Gynaecology & Obstetrics) at SMS College, Jaipur. The respondent was not given the due seat of his choice and therefore, he filed a contempt petition before the learned Single Judge. The respondent claimed that as per the result of first counseling, the name of the candidate Ms. Rekha, who had secured 621.40 marks was placed at serial No. 281 and therefore, he was required to be treated at par qua Ms. Rekha. The respondent claimed that as per the result of first counseling, the name of the candidate Ms. Rekha, who had secured 621.40 marks was placed at serial No. 281 and therefore, he was required to be treated at par qua Ms. Rekha. 7. Both the contempt petition and the writ petition, were heard and disposed of by the learned Single Judge together. 8. It was contended on behalf of the appellant before the learned Single Judge that before passing of the interim order dated 10.4.18, the first counseling had already taken place and therefore, the respondent could not have been given NEET PG-2018 as per his choice, as the said seat had already been filled in pursuant to first counseling on 5.4.18. 9. During the course of arguments, the counsel appearing for the appellants was asked as to whether any seat is lying vacant, the appellants responded that the seat for NEET PG-2019 Examination for MD Paediatrics at S.N. Medical College and Associated Group of Hospital is still lying vacant on account of resignation submitted by a candidate namely, Dr. Sayed Kamran Ali Hashmi. 10. The learned counsel appearing for the respondent submitted before the learned Single Judge that the respondent would be satisfied if the aforesaid vacant seat available for which he is otherwise entitled and eligible as per his merit and choice, is allotted to him. Accordingly, by the order impugned taking into consideration the eligibility and entitlement of the respondent, as per his merit and choice, the learned Single Judge by the order impugned directed the appellants to give vacant seat of M.D. (Paediatrics) at Dr. S.N. Medical College and Associated Group of Hospital, Jodhpur to the respondent in pursuance of NEET PG-2018. Hence, this appeal. 11. Learned counsel appearing for the appellants submitted that the counseling for admissions to P.G. Course pursuant to NEET PG-2018 was concluded on 14.5.18 and therefore, the respondent could not have been allotted the seat fallen vacant on account of resignation being submitted by a candidate pursuing the said course. 12. Indisputably, the respondent was entitled for bonus marks in lieu of six and half years service rendered by him as Medical Officer in the remote/difficult area. 12. Indisputably, the respondent was entitled for bonus marks in lieu of six and half years service rendered by him as Medical Officer in the remote/difficult area. Apparently, it is only on account of lapse on the part of the appellants that the respondent was not awarded the bonus marks as per his entitlement and therefore, in the first counseling he was not allotted the seat as per his choice. It is not disputed by the appellants before this Court that if the bonus marks for which the respondent was entitled are added to the marks obtained by him in NEET PG-2018 Examination, he was entitled to be admitted to the course of M.D. (Paediatrics). In the considered opinion of this Court, on account of the lapse on the part of the appellants in awarding the bonus marks to the respondent well in time before the first counseling, the respondent cannot be made to suffer. In this view of the matter, we are in full agreement with the view taken by the learned Single Judge. 13. Moreover, we are informed that pursuant to the order under appeal, the respondent has already been allotted the seat of M.D. (Paediatrics) lying vacant in Dr. S.N. Medical College and Associated Group of Hospital, Jodhpur. 14. For the aforementioned reasons, no case for interference by us in intra court appeal jurisdiction is made out. 15. The appeal is therefore, dismissed.