Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 360 (HP)

Bhanu Kanwar v. State of H. P.

2020-06-25

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2020
JUDGMENT : Tarlok Singh Chauhan, J. 1. Even though, controversy in issue in both these cases is different, however since they relate to the admission to the PG (MD/MS) courses, they were taken up together for consideration and are being disposed of by a common judgment. 2. The petitioners, after qualifying MBBS examination have been appointed as Medical Officers and are serving in different parts of the State. 3. The National Board of Examinations issued an advertisement for conducting National Eligibility-cum-Entrance Test 2020 for the Post Graduate Degree (MD/MS) courses. All the petitioners appeared and qualified the said test, however since the petitioners in CWP No. 898/2020 were not given incentive marks for the service rendered by them in rural areas prior to 27.2.2019, they have filed the petition for grant of the following substantive reliefs:- 1. That appropriate writ, order or direction may very kindly be issued and clause 3.9(ii) of the prospectus (Annexure P-3) Centralized Counseling and Admission for Post Graduate Degree (MD/MS) Courses along with Appendix 4(i) and 4(ii) may very kindly be quashed and set aside, in the interest of justice. 2. That appropriate writ order or direction may very kindly be issued directing the state to strictly adhere to Annexure P-6 Post Graduate Medical Education (Amendment) Regulations, 2018, as also the policy for regulating the admission to various Post Graduate and Super Specialty Courses in the Medical Education applicable in the State of Himachal Pradesh issued vide notification dated 27.02.2019 (Annexure P-7), in the interest of law and justice. 3. That appropriate writ order or direction may very kindly be issued to the respondents to give incentive marks to the petitioners for the entire service rendered by them in any of the areas as identified by the State vide PG and Super Specialty Policy dated 27.2.2019 (Annexure P-7) upto maximum of 30%, in the interest of law and justice. In the alternative, the directions may very kindly be issued to the State to grant incentive marks to the candidates either as per the previous policy notification dated 20.3.2017 or the present policy dated 27.2.2019 (Annexure P-7) as per the option of the candidates for the entire period of service as they rendered in the areas as identified in these two policies, in the interest of law and justice. 4. 4. As regards the petitioner in CWP No. 1407/2020, even though she was granted marks for service rendered in rural area, however she was not granted complete 10 marks-only on the ground that Primary Health Centre, Batheri, where the petitioner had been working earlier, was initially under Padhar Block, Chohar Valley i.e. a notified remote and difficult area and subsequently, vide letter dated 31.8.2017, its administrative control had been shifted from Medical Block Padhar to Kataula Block, which is no longer a remote and difficult area and, thus, the petitioner was only entitled to pro rata marks and not complete 10 marks-constraining her to file the petition for grant of following substantive reliefs:- 1. That writ of mandamus may be issued directing the respondent authority to grant incentive of complete three years of rural service to the petitioner as per the certificate given by the competent authority. 2. That first counseling, which is scheduled to be held on or before 3rd May, 2020 may be postponed till the respondents rectify the merit of the petitioner after giving her incentive of complete three years of rural service. 3. that respondent's authority may be directed to call the petitioner for the first counseling which is scheduled to be held on or before 3rd May, 2020. 5. In order to appreciate the controversy, it would be necessary to give a brief background regarding the procedure of admission to PG (MD/MS) courses. 6. Admissions to PG (MD/MS) courses prior to 2013 were made State-wise on the basis of a competitive test held by the respective States. It is only after 2013 that a Centralized National Level Test was conducted. It is also relevant to mention that prior to 2017, there were respective quotas for in-service General Duty Officers (GDOs) and certain relaxations were also given to the candidates, who were serving or had served in rural/difficult/hard areas. 7. The Medical Council of India in exercise of power conferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1956 framed Postgraduate Medical Education Regulations, 2000. 7. The Medical Council of India in exercise of power conferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1956 framed Postgraduate Medical Education Regulations, 2000. As per amendment carried out vide notification dated 15.2.2012 in regulation 9(IV) thereof, it was provided that in determining the merit of candidates who are in-service of Government/public authority, weightage 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. 8. The interpretation to be given to Regulation 9 including 9(IV) was subject matter before the Hon'ble Supreme Court in State of Uttar Pradesh and others vs. Dinesh Singh Chauhan (2016) 9 SCC 749 , wherein the Hon'ble Supreme Court has held that it remains no longer res integra that Regulation 2000 including Regulation 9 is self contained Code laying down the procedure to be followed for admission to the Postgraduate degree courses. 9. The validity of Regulation 9 (IV) was examined by the Hon'ble Supreme Court and it was held that same was proper and reasonable and also fulfilled the test of Article 14 of the Constitution being larger public interest. 10. It is on the strength of aforesaid regulation that the State Government identified the difficult and remote areas by issuing notification dated 20.3.2017. 11. The manner for exercise of discretion for grant of bonus marks as incentive to in-service candidates under the proviso to Regulation 9(IV) of the Regulations of 2000 for admissions to PG medical courses was considered by the Hon'ble Supreme Court in State of Haryana and anr. vs. Dr. Narender Soni and ors., AIR 2017 SC 2892 and Dr. Amit Bagra & ors. vs. State of Rajasthan and ors. (SLP (C) No. 11692/2017), albeit in the context only of identification and notification of remote and/or difficult areas under the then extant proviso to Regulation 9(IV) of the Regulations of 2000. It was held by the Hon'ble Supreme Court that it was necessary for the exercise of such discretion by the State Government/competent authority to adhere to defined objective standards/criterion. (SLP (C) No. 11692/2017), albeit in the context only of identification and notification of remote and/or difficult areas under the then extant proviso to Regulation 9(IV) of the Regulations of 2000. It was held by the Hon'ble Supreme Court that it was necessary for the exercise of such discretion by the State Government/competent authority to adhere to defined objective standards/criterion. The Hon'ble Supreme Court further held that the relevant objective criteria for the purpose inter-alia entailed identification of such areas with reference to the difficulty posed by the remoteness of a rural area, the difficulty posed by natural and social environmental factors, the difficulty a family would have in terms of housing, water, electricity and schooling and the record of success of the system in filling up the post in the past. 12. For completion of records, it needs to be mentioned that the validity of the aforesaid notification was assailed in Dr. Aarti Dhatwalia vs. State of H.P., : ILR 2017 (III) HP 27 and this Court upheld the validity of the notification. The decision of this Court was thereafter assailed by the petitioner therein before the Hon'ble Supreme Court in SLP (C) No. 1061-15064/2017 and vide judgment dated 30.1.2018, the SLP came to be disposed of, wherein Even though, the Hon'ble Supreme Court did not disturb the admissions made for the relevant year, however it was left open to the State Government to identify the areas such as remote/difficult etc. and notify the same after undertaking requisite exercise. It was also left open to the petitioner therein to make a representation so that the State Government could examine the matter and take a decision in light of the judgments rendered by the Hon'ble Supreme Court in Dr. Amit Bagra and Narender Soni cases (supra). Further it was left open to the State Government to identify such areas as may be remote or difficult areas, as it may deem appropriate. 13. It is thereafter that the Medical Council of India further amended its Regulations vide notification, dated 5.4.2018, wherein apart from remote and/or difficult areas, rural areas were also included. 14. It would be apposite here to reproduce the amended Regulation 9(IV), which reads thus:- The reservation of seats in Medical Colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. 14. It would be apposite here to reproduce the amended Regulation 9(IV), which reads thus:- The reservation of seats in Medical Colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Postgraduate Courses from the said merit lists only. Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive upto 10% of the marks obtained for each year of service in remote and/or difficult areas or Rural areas upto maximum of 30% of the marks obtained in National Eligibility-cum Entrance Test. The remote and/or difficult areas or Rural areas shall be as notified by State Government/Competent authority from time to time.". 15. The respondents-State in compliance to the directions passed by the Hon'ble Supreme Court in Arti Dhatwalia's case (supra) and acting in furtherance of the amended Regulation 9(IV) issued notification dated 27.2.2019 providing for incentive marks for the service rendered in remote or difficult or rural areas. However, vide clause 12.1 of the notification, it was made clear that for the purpose of incentive, the Policy shall be applicable henceforth; meaning thereby the GDOs, who have served in field postings in the past would be awarded incentive as per previous notification dated 20.3.2017 (and amended from time to time) and any GDO who is serving/will serve in any field posting would be entitled for incentive as prescribed in the policy from now onwards. 16. Clause 12.1 reads as under:- For the purpose of incentive, this Policy shall be applicable henceforth; meaning thereby the GDOs, who have served in field postings in the past will be awarded incentive as per previous notification dated 20.3.2017 (and amended from time to time) and any GDO who is serving/will serve in any field posting will be entitled for incentive as prescribed in the policy from now onwards. 17. In the final prospectus for Postgraduate (MD/MS) 2021, the provision for incentive marks is as per the notification dated 27.2.2019 as is evident from clause 3 of the prospectus, relevant portion whereof reads as under:- 3.1. 17. In the final prospectus for Postgraduate (MD/MS) 2021, the provision for incentive marks is as per the notification dated 27.2.2019 as is evident from clause 3 of the prospectus, relevant portion whereof reads as under:- 3.1. There shall be no requirement for NOC to appear in NEET PG 2020 for any of the GDO candidate. 3.2: There shall be requirement of an incentive certificate for availing incentive for serving in the State as GDO provided that such incentive certificate shall be issued to only GDOs who have completed at least one year uninterrupted continuous service without any break or unauthorized absence of the date declaration of result of NEET PG 2020 i.e. 31.1.2020. Further provided that this incentive certificate shall be valid only appearing in the State quota counseling. 3.3: An application for issuance of incentive certificate shall be made by desirous GDO to the concerned Chief Medical Officer under who he/she is currently serving. The application shall be made on the prescribed format (Appendix-4 (1) & 2). The concerned Chief Medical Officer shall verify the service particulars of the GDO from the maintained service record and send the incentive certificate for counter signature of Director of Health Services, Himachal Pradesh. 3.4: GDOs shall be entitled for incentives in terms of %age of marks obtained in NEET PG 2020 based on their service rendered in various fields posting as given below as per PG policy notified by the State Government vide Notification No. HFW-(F) 4-9/2017-II dated 27.2.2019. 18. Clause 3.9 of the prospectus reads under:- (i) No incentive shall be applicable for those GDOs who are appearing for the All India Counseling. (ii) For the purpose of incentive, this Policy shall be applicable henceforth; meaning thereby the GDOs, who have served in field postings in the past will be awarded incentive as per previous notification dated 20.3.2017 (and amended from time to time) and any GDO who is serving/will serve in any field posting will be entitled for incentive as prescribed in the policy from now onwards. 19. 19. Now, the grievance of the petitioners in CWP No. 898/2020 is that since the notification dated 27.2.2019 is in supersession of previous notifications, therefore, after coming into force of this Policy, previous policies do not subsist and, consequently, the petitioners are required to be awarded incentive marks for the entire service rendered in the rural areas or else this notification would become meaningless and render otiose. 20. The contention put forth by the petitioners cannot be accepted for more than one reason. 21. Firstly, the notification dated 20.3.2017, which provided for incentive marks for service rendered in remote or/and difficult areas and did not provide for incentives for service rendered in rural areas has been upheld by this Court as also by the Hon'ble Supreme Court in Arti Dhatwalia's case (supra). 22. Not only this, the said notification has thereafter been upheld by this Court in batch of petitions, lead being CWP No. 627/2019, titled as Arpna Sharma vs. State of H.P. and ors., decided on 4.5.2019 and CWP No. 886/2020, titled as Sooshrut Thakur vs. State of H.P. and ors., decided by a coordinate bench of this Court on 20.5.2020. 23. Secondly, it is an admitted case of the parties that there was no weightage in marks as incentive for service rendered in rural areas and the same became available in remote or/and difficult areas only after the amendment that was brought about by the Medical Council of India vide notification dated 5.4.2018. 24. Even thereafter, it was for the States to have identified such remote or difficult or rural areas in light of the judgments rendered by the Hon'ble Supreme Court in Dr. Amit Bagra, Dr. Narender Soni and Dr. Arti Dhatwalia's cases and only after such identification, could those areas have been notified for awarding of incentive marks. 25. Therefore, in such circumstances, incentive marks cannot be given from a retrospective date, more particularly, when there was no such provision even in the regulations framed by the Medical Council of India. 26. Amit Bagra, Dr. Narender Soni and Dr. Arti Dhatwalia's cases and only after such identification, could those areas have been notified for awarding of incentive marks. 25. Therefore, in such circumstances, incentive marks cannot be given from a retrospective date, more particularly, when there was no such provision even in the regulations framed by the Medical Council of India. 26. Lastly and more importantly, clause 12 of the notification dated 27.2.2019 clearly provides that the Policy shall be applicable henceforth; meaning thereby the GDOs, who have served in field postings in the past would be awarded incentive as per previous notification dated 20.3.2017 and it is only the GDOs, who are serving and will serve in any field posting would be entitled for incentive as prescribed in the policy from now onwards i.e. in terms of notification dated 27.2.2019. 27. Thus, what is evidently clear from the aforesaid discussion is that even if there is no provision in the prospectus providing for incentives to be prospective i.e. w.e.f. 27.2.2019 even then the said incentive would otherwise be governed by the terms and conditions as set out in the policy dated 27.2.2019. 28. Now, as regards claim of the petitioner in CWP No. 1407/2020, it is not in dispute that the petitioner after qualifying MBBS was appointed as Medical Officer at PHC Batheri, which falls in Padhar Block of Chohar Valley in District Mandi, which as per notification dated 20.3.2017 falls in the difficult/tribal/backward area of the State and, therefore, the petitioner is entitled to incentive marks for the service rendered in such area. 29. At this stage, Mr. Ajay Vaidya, learned Senior Additional Advocate General would argue that since the administrative control of PHC Batheri is no longer with Padhar Block in view of the notification dated 31.8.2017, whereby administrative control has now been shifted to Kataula Block, the petitioner is not entitled to the incentive marks. 30. This plea deserves to be rejected for the simple reason that it is only the shifting of administrative control of PHC Batheri that has been effected vide letter dated 31.8.2017 and there is no decision much less conscious decision of the respondents to hold that PHC Batheri is not in remote or backward area of Chohar Valley. 30. This plea deserves to be rejected for the simple reason that it is only the shifting of administrative control of PHC Batheri that has been effected vide letter dated 31.8.2017 and there is no decision much less conscious decision of the respondents to hold that PHC Batheri is not in remote or backward area of Chohar Valley. Therefore, in such circumstances, merely because administrative control of the block has been shifted will not mean that the PHC is not situated in difficult or tribal or backward area of Chohar Valley so as to deprive the petitioner for incentive marks for service rendered in such area and thus, in absence of exclusion of this area from remote or tribal or backward area, the petitioner is legally entitled to the incentives provided for service rendered in such remote or tribal or backward area. 31. In view of aforesaid discussion, CWP No. 898/2020 is ordered to be dismissed, whereas CWP No. 1407/2020 is allowed. Since the petitioner in CWP No. 1407/2020 was provisionally allowed to participate in the counselling held on 27.4.2020, the respondents are directed to rectify merit of the test after giving incentive of complete 3 years of the service rendered by her in PHC Batheri by treating the same to be rendered in difficult or hard area and thereafter take all consequential steps within four weeks from receipt of copy of this judgment. Pending application(s), if any, also stands disposed of.