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2022 DIGILAW 230 (MP)

Durga Pandey (Dr. ) v. State of M. P.

2022-02-10

ARUN KUMAR SHARMA, SUJOY PAUL

body2022
ORDER Paul, J. -- 1. The petitioner, a Medical Officer, working in Primary Health Centre, (PHC) Dagdiha, District Satna (M.P.) filed this petition under Article 226 of the Constitution seeking writ of mandamus commanding the respondents to treat the petitioner as in-service candidate. 2. During the pendency of the petition, an amendment application was filed whereby the legality, validity and propriety of order dated 19.1.2022 (Annexure P/7) was also called in question. In addition, a mandamus is prayed for to include Dagdiha Primary Health Centre (PHC) in appendix (II) of order dated 28.2.2019 (Annexure P/5). The order dated 19.1.2022 (Annexure P/7) is called in question whereby PHC, Dagdiha was not treated to be more than 25 kms from Satna Municipal Corporation’s Headquarter. 3. In short, the admitted facts between the parties are that petitioner while working as Medical Officer in the said PHC was declared as open category candidate. During the course of hearing, Shri Aditya Sanghi fairly submitted that the relief 7(i) and 7(ii) of the petition for treating her as inservice candidate has rendered infructuous because department pursuant to a different order passed by this Court, has treated the petitioner as in-service candidate. The only grievance subsist is regarding non grant of additional marks/incentive which is based on the assumption of distance between said two places founded upon a Google Map. 4. Shri Aditya Sanghi, learned counsel for the petitioner by placing reliance on document dated 22.11.2021 (Annexure P/2) issued by Chief Medical & Health Officer (CMHO), District Satna, urged that the distance between PHC, Dagdiha and Nagar Nigam Satna is approximately 28 kms. The order dated 28.2.2019 (Annexure P/5) issued by the Government makes it clear that in-service candidates are entitled to get additional marks if their PHC is situated in a rural/remote or difficult area which is situated more than 25 kms from Headquarter of Nagar Nigam. Reliance is placed on Clause (2)(, )(II) of the order dated 28.2.2019. The other eligibility conditions, submits Shri Sanghi, are not relevant for the present petitioner. 5. Learned counsel for the petitioner submits that the petitioner had already appeared in the first round of counselling. She is entitled to get a seat of M.S. (Gynecology) or M.D. (Medicine) provided additional marks are given to her as per order dated 28.2.2019 (Annexure P/5). The other eligibility conditions, submits Shri Sanghi, are not relevant for the present petitioner. 5. Learned counsel for the petitioner submits that the petitioner had already appeared in the first round of counselling. She is entitled to get a seat of M.S. (Gynecology) or M.D. (Medicine) provided additional marks are given to her as per order dated 28.2.2019 (Annexure P/5). This Court passed an interim order on 19.1.2022 directing the respondents to take a decision on the eligibility of petitioner in the teeth of circular dated 28.2.2019 by taking into account the document dated 22.11.2019 (Annexure P/2) issued by the CMHO. In turn, the respondents passed the impugned order dated 19.1.2022 (Annexure P/7) and rejected the claim of petitioner by holding that :- (i) The distance between PHC, Dagdiha and headquarter of Nagar Nigam, Satna as per Google Map is less than 25 km, i.e. 20.8 km. (ii) In the appendix of Government order dated 28.2.2019, the name of PHC, Dagdiha is not included. (iii) The petitioner never preferred any representation for inclusion of PHC, Dagdiha in relevant appendix of order dated 28.2.2019, (Annexure P/5). 6. Shri Sanghi, learned counsel for the petitioner submits that para-8 of the impugned order dated 19.1.2022 shows that there are three measurements of the said distance by three authorities/bodies. The CMHO, as noticed, has opined that distance between said two places is 28 km, as per Google Map, it is 20.8 km and as per another report, it is 26 km (via Satna -Simariya). It is urged that it is not safe to rely on Google Map. It normally reflects the aerial distance. The reliance is placed on paper cutting of the Indian Express, January 31, 2022 (Annexure P/10), which reflects that while speaking at a programme, Surveyor General of India stated that the Google Maps are used by low end application with a confined accuracy, while the Survey of India Maps are used for high engineering applications. The Google Maps are not fit for high end applications. Thus, aforesaid distance based on Google Map deserves to be discarded and in lieu thereof, the distance mentioned in CMHO’s reports must be accepted. In that event, the distance between the said two places will be more than 25 km. In that event, PHC, Dagdiha deserves to be included in the relevant appendix of order dated 28.2.2019 (Annexure P/5). 7. Thus, aforesaid distance based on Google Map deserves to be discarded and in lieu thereof, the distance mentioned in CMHO’s reports must be accepted. In that event, the distance between the said two places will be more than 25 km. In that event, PHC, Dagdiha deserves to be included in the relevant appendix of order dated 28.2.2019 (Annexure P/5). 7. An attempt is made by learned counsel for the petitioner to explain the delay in lodging the claim for inclusion of Dagdiha in the order dated 28.2.2019 by contending that in November, 2021 only petitioner became eligible to participate in the counselling process. Before that there was no occasion for her to examine and challenge the order dated 28.2.2019 (Annexure P/5). Thus, the delay is inconsequential and is not a hurdle. The Supreme Court in 2021 (6) SCC 568 (Tamil Nadu Medical Officers Association and others v. Union of India and others) has already opined that Medical Officers working in remote/rural/hilly regions be given the benefit of in service category additional marks. Thus, there is no justification in depriving the petitioner from fruits of incentive marks as per order dated 28.2.2019. 8. Lastly, it is urged that respondents be directed to include PHC, Dagdiha in relevant appendix of order dated 28.2.2019 and consequently grant her additional marks so that in second round of counselling, she may get M.D. (Medicine)/better subject. 9. Shri Pradeep Singh, Government Advocate for the respondent/State opposed the said contentions of learned counsel for the petitioner and urged that :-- (i) When petitioner submitted her candidature, the order dated 29.2.2019 was very much in existence. She was fully aware that as per the appendix of this order, PHC, Dagdiha is not covered and accordingly, petitioner is not entitled to get the benefit of additional marks. (ii) The petitioner without any objection to such non-inclusion of PHC, Dagdiha in order dated 28.2.2019 (Annexure P-5) submitted her candidature and participated in the counselling process. At this stage, her objection and claim is not tenable. (iii) When this petition was originally filed, neither challenge was made to order dated 28.2.2019 (Annexure P-5) nor any prayer was made for inclusion of PHC, Dagdiha in the said order. At this distance of time, when selection process has already begun, petitioner cannot be permitted to raise eye-brows against non-inclusion of said PHC in order dated 28.2.2019. (iii) When this petition was originally filed, neither challenge was made to order dated 28.2.2019 (Annexure P-5) nor any prayer was made for inclusion of PHC, Dagdiha in the said order. At this distance of time, when selection process has already begun, petitioner cannot be permitted to raise eye-brows against non-inclusion of said PHC in order dated 28.2.2019. (iv) Government Body/Experts are best suited to take a decision regarding distance between two places. The said disputed question of fact cannot be gone into by this Court in exercise of writ jurisdiction. 10. Learned counsel for the parties confined their arguments to the extent indicated above. 11. We have heard learned counsel for the parties at length and perused the record. 12. During the course of hearing, it was admitted by the parties that when petitioner submitted her candidature and even when participated in counselling, she did not challenge the non-inclusion of PHC, Dagdiha in the order dated 28.2.2019 (Annexure P-5). In the prayer clause of this writ petition originally filed, there was no prayer assailing non-inclusion of said PHC in the order dated 28.2.2019. As per etitioner’s own case, the petitioner became eligible to participate in the counselling process in November, 2021 only. From November, 2021, till filing of amendment in this writ petition on 3rd February, 2022, the petitioner never assailed the governing order/provision dated 28.2.2019 (Annexure P-5) but prayed for issuance of a mandamus which in our opinion will amount to rewriting the policy decision or a Government order. This Court recently in W.P. No.25819/2021 opined as under : “19. The second limb of argument of Shri Siddharth Gupta, Advocate was for getting incentive marks. This argument is based on order dated 28.2.2019. A careful reading of this order makes it clear that incentive marks were decided to be given to in service candidates who have worked in rural, remote and difficult areas. Scheduled-1 is appended to this order dated 28.2.2019 whereby “difficult areas” are earmarked. The place of posting of petitioners namely Harda and Indore do not find place in the Schedule. Pertinently, order dated 28.2.2019 is not called in question. The order dated 28.2.2019 is a policy decision taken by the Government which cannot be lightly disturbed. The policy decision can be interfered with on limited grounds. The place of posting of petitioners namely Harda and Indore do not find place in the Schedule. Pertinently, order dated 28.2.2019 is not called in question. The order dated 28.2.2019 is a policy decision taken by the Government which cannot be lightly disturbed. The policy decision can be interfered with on limited grounds. When policy decision is not even challenged, it has to be read as such and this Court cannot re-write and insert something which is not there in their policy decision. The State Government is best suited to take a policy decision and this Court has no expertise to re-write or insert something in it. The legal journey on this aspect may be seen. Lord Mac Naughten in Vacher & Sons Ltd. v. London Society of Compositors [Vacher & Sons Ltd. v. London Society of Compositors, 1913 AC 107: (1911-13) All ER Rep 241 (HL)] has stated : (AC p.118) : “…. Some people may think the policy of the Act unwise and even dangerous to the community. … But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction.’ (Emphasis Supplied) The litmus test laid down by Lord Mac Naughten was quoted with profit by Supreme Court in the matter of Centre for Public Interest Litigation v. Union of India [ (2016) 6 SCC 408 ]. In the matter of State of M.P. Vs. Nandlal Jaiswal (1986) 4 SCC 566 , the Apex Court has held as under :- “34……. The Government, as was said in Permian Basis Area Rate Cases [20L Ed (2d) 312] is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution.” (Emphasis Supplied) 20. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution.” (Emphasis Supplied) 20. The ratio decidendi of these judgments were consistently followed by Supreme Court in the case of State of Punjab v. Ram Lubhaya Bagga, Ugar Sugar Works Ltd. Vs. Delhi Admn [ (2001) 3 SCC 635 ], State of Orissa v. Gopinath Dash [ (2005) 13 SCC 495 ], State of U.P. v. Chaudhari Ran Beer Singh [ (2008) 5 SCC 550 ], Parisons Agrotech (P) Ltd. v. Union of India [ (2015) 9 SCC 657 ]and Centre for Public Interest Litigation v. Union of India [ (2016) 6 SCC 408 ]. 21. So far judgment of Malpe Vishwanath Acharya and others v. State of Maharashtra and another [ (1998) 2 SCC 1 ] is concerned, suffice it to say that in the said case, the constitutionality of impugned provision was called in question but said provisions elapsed on 31.3.1998. In the instant case, the relevant provision/circular is not called in question. Similarly, in the case of Motor General Traders and another v. State of Andhara Pradesh and others [ (1984) 1 SCC 222 ], the constitutional validity of Clause (b) of section 32 of Relevant Control Act was subject matter of challenge. In that backdrop, the findings were given by Supreme Court. In absence of any such challenge to the circular/order dated 28.2.2019, the said judgments cannot be pressed into service.” 13. The aforesaid factual matrix shows that the petitioner participated in the counselling process without any demur and objection regarding non inclusion of PHC, Dagdiha in the governing order dated 28.2.2019. Putting it differently, the petitioner with eyes open participated in the selection process/counselling knowing fully well that her place of posting PHC, Dagdiha is not covered in the order dated 28.2.2019 (Annexure P/5). After completion of first round of counselling only, the petitioner assailed the decision of Government in not including PHC, Dagdiha for the purpose of giving additional marks to the medical officer posted therein. After completion of first round of counselling only, the petitioner assailed the decision of Government in not including PHC, Dagdiha for the purpose of giving additional marks to the medical officer posted therein. This is trite that if a governing provision is known to the candidate and despite that he/she participates in the selection process, after becoming unsuccessful or getting disadvantageous position cannot raise eye-brows against the provision at a later stage. Thus, we find substantial force in the argument of learned Government Advocate that at this stage petitioner cannot be permitted to seek amendment/modification in the governing order dated 28.2.2019 (Annexure P/5) for inclusion of PHC, Dagdiha. 14. The legal journey on this aspect may be seen. 15. In Om Prakash Shukla v. Akhilesh Kumar Shukla and others 1986 (Supp) SCC 285 Supreme Court held as under :-- “24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.” 16. In Vijendra Kumar Verma v. Public Service Commission Uttarakhand and others [ (2011) 1 SCC 150 ] Supreme Court held as under :-- “24. ….All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.” (Emphasis Supplied) 17. Reference may be made to Manish Kumar Shahi v. State of Bihar and others [ (2010) 12 SCC 576 ] Supreme Court held as under :- “16. Reference may be made to Manish Kumar Shahi v. State of Bihar and others [ (2010) 12 SCC 576 ] Supreme Court held as under :- “16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K [ (1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , Marripati Nagaraja v. Govt. of A.P. [ (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68], Dhananjay Malik v. State of Uttaranchal [ (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005], Amlan Jyoti Borooah v. State of Assam [ (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [ (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57]” 18. In Ramesh Chandra Shah v. Anil Joshi [ (2013) 11 SCC 309 ] Supreme Court clearly held as under :-- “24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.” (Emphasis Supplied) 19. Similarly in Air Commodore Naveen Jain v. Union of India and others (2019) 10 SCC 34 the Supreme Court opined as under :- “23. Similarly in Air Commodore Naveen Jain v. Union of India and others (2019) 10 SCC 34 the Supreme Court opined as under :- “23. Apart from the policy, we also find that the appellant is estopped to challenge the policy after participating in the selection process on the basis of such policy. It has been so held by this Court in Madan Lal & Ors. v. State of J & K (1995) 3 SCC 486 : 1995 SCC (L&S) 712 (SCC p.493, para 10). “10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a Court of appeal over the assessment made by such an expert committee.” 24. In a judgment reported as Ashok Kumar v. State of Bihar (2017) 4 SCC 357 : (2017 1 SCC (L&S) 822, a three Judge Bench held that the appellants were estopped from turning around and challenging the selection once they were declared unsuccessful. The Court held as under : (SCC pp. 364-65, paras 17-19) “17. In Ramesh Chandra Shah v. Anil Joshi [ (2013) 11 SCC 309 : (2011) 3 SCC (L&S) 129], candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. The Court held as under : (SCC pp. 364-65, paras 17-19) “17. In Ramesh Chandra Shah v. Anil Joshi [ (2013) 11 SCC 309 : (2011) 3 SCC (L&S) 129], candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the method- ology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that : (SCC p.318, para 18). “18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.” 18. In Chandigarh Admn. v. Jasmine Kaur [ (2014) 10 SCC 521 : 6 SCEC 745], it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey [ (2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274], this Court held that : (SCC p. 500, para 17). “17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed.”(Emphasis Supplied) 20. In view of principles laid down in the aforesaid judgments, it is crystal clear that after having participated in the selection/counselling process (before commencement of which petitioner did not raise any objection for non-inclusion of her PHC), the petitioner cannot be permitted to say that non-inclusion of PHC, Dagdiha is bad in law. This cannot be allowed.”(Emphasis Supplied) 20. In view of principles laid down in the aforesaid judgments, it is crystal clear that after having participated in the selection/counselling process (before commencement of which petitioner did not raise any objection for non-inclusion of her PHC), the petitioner cannot be permitted to say that non-inclusion of PHC, Dagdiha is bad in law. The petitioner is bound by principles of estoppel/waiver and cannot claim a benefit which is not covered by order dated 28.2.2019 (Annexure P/5). 21. In view of the foregoing analysis, there is no need for us to deal with other arguments of learned counsel for the parties relating to actual distance between PHC, Dagdiha and Headquarter of relevant Nagar Nigam. Similarly, the aspect whether Google Map can form basis for determining the distance between said two places also pales into insignificance. The petitioner after participating in the entire selection/counselling process cannot be permitted to raise eye brows either on the validity of the order dated 28.2.2019 (which is not even specifically under challenge before us) or claim inclusion of PHC, Dagdiha in the said order. 22. The petition is devoid of substance and is hereby dismissed.