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2021 DIGILAW 635 (PAT)

Mehre Afshan Mehdi v. State Of Bihar

2021-07-13

CHAKRADHARI SHARAN SINGH

body2021
JUDGMENT 1. The matter has been taken up for hearing online because of COVID-19 pandemic restrictions. 2. The petitioner is a citizen of India, who, after passing her 12th examination held by the Central Board of Secondary Education, pursued her MBBS course in Bangladesh Medical College under Dhaka University in 2013, as pleaded in the writ application. The name of the said medical institution figures in the Second Schedule of the Indian Medical Council Act, 1956 (hereinafter referred to as 'the Act'), which contains list of recognized medication qualifications granted by the medical institutions outside India. It is accordingly, the petitioner's case that her MBBS qualification is a recognized qualification for the purposes of the said Act. 3. It is the petitioner's further case that as stipulated in Section 13(4-A) of the Act, she had appeared in the screening test conducted by the National Board of Examination, prescribed for enrollment on the medical register maintained by the State Medical Council and had cleared the same in 2013. She possesses provisional registration certificate issued by the Medical Council of India and certificate of registration issued by the Bihar Council of Medical Registration. 4. She has filed this application challenging letter No. 2010(2) dated 02.12.2019, issued under the signature of Joint Secretary, Health Department, Government of Bihar addressed to the Incharge Secretary, Bihar Technical Service Commission, Patna (hereinafter referred to as 'the Commission'), whereby the Commission has been asked to determine merit of such candidates who have obtained their MBBS qualification from an institution outside India, on the basis of 50% of the marks actually obtained by them in the MBBS examination. The said communication is in response to a letter written by the Commission dated 28.11.2019 in connection with Advertisement No. 3/2019 issued by the Commission. 5. The petitioner was an applicant for appointment against the post of Special Medical Officer, Gynecology in response to the said Advertisement. It is stated at the Bar that the selection process initiated pursuant to Advertisement No. 03/2019 is over. Learned counsel for the petitioner has submitted that he is not raising any grievance in relation to the petitioner's non-selection in the said selection process since appointments have been made pursuant thereto. 6. An Interlocutory Application being LA. It is stated at the Bar that the selection process initiated pursuant to Advertisement No. 03/2019 is over. Learned counsel for the petitioner has submitted that he is not raising any grievance in relation to the petitioner's non-selection in the said selection process since appointments have been made pursuant thereto. 6. An Interlocutory Application being LA. No. 01/2021 has been filed seeking amendment in the writ application as during pendency of this writ application the respondent-Commission has come out with another Advertisement No. 17/2021 dated 28.04.2021, Clause-8 note (ii) of which prescribes that only 50% weightage shall be given to MBBS marks obtained by the candidates who have acquired such qualification from a foreign university for the purpose of preparation of merit-list. The petitioner is an applicant pursuant to this Advertisement No. 17/2021 also. Learned counsel for the petitioner has argued hat the said clause in the advertisement is contrary to the statutory Rules governing the selection for the post in question. 7. For the reasons mentioned in the Interlocutory Application, LA. No. 01 of 2021 is allowed. The averments made in the Interlocutory Application have been treated to be part of the main application. The relief sought for in the main application stands amended accordingly and the petitioner's prayer to question the legality of Clause 8 note (ii) of Advertisement No. 17/2021 dated 28.04.2021 stands allowed. 8. It is the petitioner's case that the recruitment for appointment to the post in question is governed by Bihar Health Service (Appointment and Service Condition) Rules, 2013, as amended by Bihar Health Service (Appointment and Service Condition) (Amendment) Rules, 2019. It is the petitioner's specific case that Rule 6 of the said Rules, as amended in 2019, requires determination of merit of candidate for appointment to the post in question against his/ her educational qualification and experience. The said Rule does not lay down any distinction between the candidates acquiring qualification granted by medical institutions within India and outside India. 9. It is accordingly the case of the petitioner that the impugned communication of the State Government and any decision of such nature requiring consideration of only 50% of marks obtained by the candidates acquiring medical qualification from institutions outside the country is wholly arbitrary, violative of statutory provisions as well as Articles 14 and 16 of the Constitution of India. 10. Md. 10. Md. Anisur Rahman, learned counsel appearing on behalf of the petitioner has submitted that the respondents cannot be permitted to deviate from the statutory prescription and the terms of advertisement for the purpose of determination of merit of candidates for selection in question. He has argued that even the advertisement No. 3 of 2019 inviting application did not contain any prescription of the nature that only 50% of the credit shall be given to the marks obtained by the candidates acquiring their medical qualification from institutions outside the country. 11. A counter affidavit has been filed on behalf of the State of Bihar stating therein that it is a uniform policy decision of the State Government to calculate the points for MBBS marks of foreign degree holders on the basis of 50% only. It is stated in the counter affidavit that the issue regarding determination of credit for MBBS marks obtained by foreign degree holders had come up for consideration before the State Government whereafter by departmental Memo No. 129(2) dated 23.01.2015 a four-man experts committee (experts committee in short) was constituted for taking necessary decision in this regard. The experts committee held its meeting on 27.01.2015 and unanimously decided to allow the candidates who after acquiring MBBS degree qualification from institution outside India and were registered with MCI to participate in the process of select on and to award point on the basis of 50% of marks scored by them in MBBS. Copy of the proceedings of the meeting of the experts committee dated 27.01.2015 has been brought on record. It is the case of the State of Bihar that on the basis of the opinion of the experts committee constituted for the said purpose, a decision to the aforesaid effect was taken. 12. Mr. S.D. Yadav, learned AAG-9, appearing on the behalf of the State of Bihar has contended that the policy of the State Government has been uniformly applied to all candidates who have obtained MBBS qualification from outside India and, therefore, the decision cannot be said to be discriminatory. 13. A counter affidavit has also been filed on behalf of the Commission. It is the stand of the Commission that it has acted as advised by the State Government of Bihar on the basis of the policy decision as noted above, in the matter of selection and preparation of merit-list in question. 14. 13. A counter affidavit has also been filed on behalf of the Commission. It is the stand of the Commission that it has acted as advised by the State Government of Bihar on the basis of the policy decision as noted above, in the matter of selection and preparation of merit-list in question. 14. Considering the stand taken on behalf of the State of Bihar that only 50% weightage was being given to the candidates acquiring MBBS qualification from outside the country, the Court desired to know the rationale behind such decision. Since there was no material available in the pleadings on record in this connection, the Court had directed production of original records. Accordingly, original records maintained by the Health Department have been produced. I have carefully perused the records including the proceedings of the meeting of the experts committee. There is absolutely no discussion available on record as to why candidates acquiring MBBS qualification from outside the country should be given only 50% of the weightage of the marks scored by them in MBBS examination, despite there being no such provision in the statutory Rules governing the selection process in question. 15. The decision of the Experts Committee in its meeting held on 23.01.2015, which is at page 477 of the original records, reads as under :- 16. At this stage it will be beneficial to take note of relevant statutory provisions under the Act need to be taken note of. Section 12 of the Act deals with recognition of medical qualifications granted by medical institutions with which there is scheme of reciprocity and reads as under :- 12. Recognition of medical qualifications granted by medical institutions in countries with which there is a scheme of reciprocity.- (1) The medical qualifications granted by medical institutions outside India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act. Recognition of medical qualifications granted by medical institutions in countries with which there is a scheme of reciprocity.- (1) The medical qualifications granted by medical institutions outside India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act. (2) The Council may enter into negotiations with the Authority in any country outside India which by the law of such country is entrusted with the maintenance of a register of medical practitioners, for the settling of a scheme of reciprocity for the recognition of medical qualifications and in pursuance of any such scheme, the Central Government may, by notification in the Official Gazette, amend the Second Schedule so as to include therein the medical qualification which the Council has decided should be recognised, and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date. (3) The Central Government, after consultation with the Council, may, by notification in the Official Gazette, amend the Second Schedule by directing that an entry be made therein in respect of any medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date. (4) Where the Council has refused to recommend any medical qualification which has been proposed for recognition by any Authority referred to in sub-section (2) and that Authority applies to the Central Government in this behalf, the Central Government, after considering such application and after obtaining from the Council a report, if any, as to the reasons for any such refusal, may, by notification in the Official Gazette, amend the Second Schedule so as to include such qualification therein and the provisions of sub-section (2) shall apply to such notification. 17. This has not been disputed that name of the institution which granted the petitioner medical qualification falls in the Second Schedule and, therefore, it is a recognized medical qualification. 17. This has not been disputed that name of the institution which granted the petitioner medical qualification falls in the Second Schedule and, therefore, it is a recognized medical qualification. Section 13(4-A) of the Act stipulates that a person who is citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognized for enrollment as medical practitioner in that country, shall not be entitled to be enrolled on any medical register unless he qualified the screening test in India prescribed for such purpose. It further states that after such person qualifies the said screening test, the qualification shall be deemed to be recognized medical qualification for the purpose of the Act for that. Section 13(4-A), for the purpose of quick reference is being reproduced hereunder :- "13 (4-A) A person who is a citizen of India and obtains medical qualification granted by any medical institution in any country outside India recognised for enrolment as medical practitioner in that country after such date as may be specified by the Central Government under sub-section (3), shall not be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have his name entered in the Indian Medical Register unless he qualified the screening test in India prescribed for such purpose and such foreign medical qualification after such person qualifies that said screening test shall be deemed to be the recognised medical qualification for the purposes of this Act for that person. " 18. A recognized medical qualification has been defined under Section 2(h) of the Act as any of the medical qualifications included in the Schedule. As has been noticed above, Sections 11 and 12 of the Act, qualifications granted by institution included in the First Schedule and those included in the Second Schedule, both have been treated to be recognized medical qualification. The Act, therefore, does not lay any distinction between the said qualifications for the purpose of the Act. 19. Further, there is no such distinction incorporated in the Rules for the purpose of selection to the post in question. Rule 6 of the Rules reads as under :- Rule 6 of original Rules, 2013 : 20. The Act, therefore, does not lay any distinction between the said qualifications for the purpose of the Act. 19. Further, there is no such distinction incorporated in the Rules for the purpose of selection to the post in question. Rule 6 of the Rules reads as under :- Rule 6 of original Rules, 2013 : 20. The said decision of the experts committee is the basis for the State Government to take a policy decision that only 50% weightage shall be given to the MBBS score of candidates acquiring such qualification from an institution outside the country does not disclose any rationale nor any such discussion is there in the original records. The said decision is apparently in teeth of the statutory Rules which have been framed in exercise of power under Article 309 of the Constitution of India and are violative of Articles 14 and 16 of the Constitution of India, the objective to be achieved by carving out such distinction itself is absent, let alone the 'reasonable nexus'. 21. Learned counsel for the petitioner, in my opinion, is correct in his submission that the respondents could not have deviated from prescription in the advertisement and those in the Rules. However, since the petitioner is raising any challenge apropos the selection pursuant to advertisement No. 3 of 2019 and has confined her relief with respect to the subsequent advertisement, no further comments are required in the present case in the said regard. 22. Resultantly, the said decision of the experts committee in its meeting held on 23.01.2015 is held to be violative of Articles 14 and 16 of the Constitution of India and the provisions of the Rules. The letter dated 04.02.2015, issued by the Health Department, Government of Bihar to the Commission is also unsustainable for the same reason and is declared ultra vires Articles 14 and 16 of the Constitution of India and the provisions of the Rules. Consequently, the impugned letter No. 2010(2) dated 02.12.2019 (Annexure-10) is hereby set aside. The Respondent-Commission is directed to act accordingly, strictly in accordance with the provisions of the Rules. 23. In the background of the aforesaid discussions, in my opinion, the said prescription in Clause 8 note (ii) of the advertisement No. 17/2021 cannot be legally sustained and is accordingly set aside, being in breach of the statutory Rules. The Commission is directed to proceed accordingly. 24. 23. In the background of the aforesaid discussions, in my opinion, the said prescription in Clause 8 note (ii) of the advertisement No. 17/2021 cannot be legally sustained and is accordingly set aside, being in breach of the statutory Rules. The Commission is directed to proceed accordingly. 24. The writ application is accordingly allowed. 25. Let the original records be returned to the learned counsel for the State of Bihar.