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2022 DIGILAW 842 (RAJ)

Meena Nitharwal v. State Of Rajasthan

2022-03-10

ASHOK KUMAR GAUR

body2022
JUDGMENT 1. The instant petition has been filed by the petitioner challenging the Circular dated 07.07.2021 issued by the Dean and Controller, Jhalawar Medical College and attached Hospital, Jhalawar (the respondent No.4) to the extent of prescribing five years regular and continuous service for the purpose of seeking No Objection Certificate (NOC) for pursuing higher studies. The petitioner also seeks a direction for issuing NOC after considering her eligibility of three years regular service on the post of Senior Demonstrator for the purpose of her admission in PG Medical College, as per her merit in OBC category. 2. The brief facts of the case are that the petitioner after completion of MBBS was appointed on the post of Senior Demonstrator in the office of respondent No.4 on 22.06.2018 and since then she has been serving there continuously without any break. The office of Chairman, NEET PG Admission/Counselling Board, 2021 issued Instruction Booklet for the State Medical PG Seats (MD/MS) Allotments-2021 and the petitioner applied and submitted online application form to appear in the NEET PG Examination, as she claims to have fulfilled the educational qualification and other eligibility criteria, prescribed in the Instruction Booklet. 3. The petitioner appeared in the said examination and result thereof was declared on 29.09.2021. The petitioner, after NEET PG Examination, registered herself for counselling and also deposited the required fee and appeared in the counselling for document verification on 19.01.2022 but the Counselling Board declared the petitioner ineligible to allot the seat in the PG Course on the ground that she was not having NOC issued by her employer and when the petitioner appeared before the respondent No.4 to issue NOC, the same was denied to her on the ground that as per the circular dated 07.07.2021, she has not completed five years of service and as such the petitioner was not allotted any seat. 4. The petitioner has pleaded that as per the Instruction Booklet issued by the NEET Counselling Board, there was a provision for the regularly selected Senior Demonstrators, working in Non-Clinical and Para-Clinical Departments of the Medical College, run by the Government, Government Societies and Government Universities, to give them priority in the same department (in which they were working) in Non-Clinical and Para- Clinical PG Degree seats allotment. The Instruction Booklet further provided that those Senior Demonstrators were to be considered, who had completed three years of regular service in the same department and have qualified the NEET Examination. 5. The petitioner has pleaded that Jhalawar Medical College is run by a Government Society registered under the Societies Registration Act, 1958 and the governing body of the Society is mainly consists of Government Officers and as such for all practical purposes, Jhalawar Medical College is a Government Medical College. The petitioner has further pleaded that no distinction can be made between the said College and the other Government Medical Colleges and the Circular dated 07.07.2021 prescribing different conditions for issuance of NOC, after completing 5 years, as compared to 3 years of service for other Government Medical Colleges, has resulted into discriminatory treatment to the petitioner. 6. The petitioner has also pleaded that the respondents have not assigned any reason and object as why they have changed the criteria contrary to the criteria fixed for the persons working on the same post in the Government Hospitals under the State Rules. 7. Counsel for the petitioner has made following submissions in support of the writ petition:- 7A. The petitioner had applied to get admission in PG Course, as per essential eligibility criteria, prescribed in the Instruction Booklet issued by the NEET PG Admission/Counselling Board and at the time of making application, if the criteria fixed for pursuing PG Course for Senior Demonstrator was to complete three years of regular service in the same department and the candidate has to be qualified the NEET PG Examination, then the subsequent amendment issued by the respondent No.4 dated 07.07.2021, cannot be given retrospective effect. 7B. The petitioner is working on the post of Senior Demonstrator in a Hospital run by the Government Society and other persons who are similarly situated i.e. Senior Demonstrators in the Government Hospitals can be issued NOC on completion of three years of service and there is no justification for making artificial discrimination in the same category of persons and as such, the circular dated 07.07.2021 issued by the respondent No.4 is discriminatory in nature and violative of Article 14 of the Constitution of India. 7C. 7C. Jhalawar Medical College for all practical purposes is a Government Medical College and no distinction can be made between the said College and the other Government Medical Colleges and Jhalwar Medical College is not be treated like a Private Medical College and the Circular issued by the respondent No.4 dated 07.07.2021 is contrary to the Instruction Booklet, issued by the NEET PG Admission/ Counselling Board, 2021. 8. Counsel for the petitioner has also submitted that prior to issuance of the Circular dated 07.07.2021, an order dated 05.04.2017 was issued by the Deputy Secretary to the Government, Department of Medical Education, Jaipur whereby in continuation of earlier order dated 31.03.2017, the Senior Demonstrators, selected by the Permanent Selection Committee, Jhalawar Medical College, Jhalawar and working in Non-Clinical and Para-Clinical Department of Jhalawar Medical College, Jhalawar were to be included on priority in Non-Clinical and Para- Clinical PG seats allotment from the academic year 2017-18 onwards and they were to be considered only after completion of three years of regular service in the same department and they qualified the NEET Examination. 9. Counsel further submitted that there is no valid justification for changing the earlier order dated 05.04.2017 and prescribing the condition of five years of service before issuance of NOC. 10. Counsel for the petitioner, in support of his submissions, placed reliance on the judgment passed by this Court dated 22.07.2020 in the case of Dr.Vidushi Sharma v. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.5435/2020] and connected writ petitions. 11. The respondent No.4 i.e. Jhalawar Medical College, Jhalawar has filed reply to the writ petition and pleaded that the petitioner had first applied for NOC for appearing in the NEET PG Entrance Examination, 2021 on 08.03.2021 and the same was granted to her on 10.03.2021, in terms of the Circular dated 13.05.2016. The respondent No.4 has further pleaded that the Circular dated 07.07.2021 was issued wherein detailed procedure for application and grant of permission to pursue higher studies was provided and Condition No.1 of the Circular dated 07.07.2021 provides in clear terms that permission for pursuing higher studies will not be granted before completion of five years of regular and continuous service. The respondent No.4 has further pleaded that the Circular dated 07.07.2021 was issued wherein detailed procedure for application and grant of permission to pursue higher studies was provided and Condition No.1 of the Circular dated 07.07.2021 provides in clear terms that permission for pursuing higher studies will not be granted before completion of five years of regular and continuous service. The said Circular further provides that a candidate is required to seek initial permission to appear in the examination from the Dean/Principal and after the candidate clears the examination, he was to apply before the Dean/Principal and the same was to be forwarded to the Convener, Jhalawar Hospital and Medical College Medical Society, subject to conditions mentioned in the Condition No.4 of the said Circular. 12. The respondent No.4 has pleaded that the petitioner on 17.08.2021 had again applied for NOC for appearing in the NEET PG Entrance Examination, 2021 which was to be held on 11.09.2021 and the same was issued to her on 18.08.2021 and the petitioner on 15.01.2022 again applied for permission to appear in the physical verification in NEET PG Counselling, 2021 and as the petitioner has not completed the mandatory service period of five years, the permission for appearing in the counselling process was not issued to the petitioner. 13. The respondent No.4 has also pleaded that the petitioner was aware of the Circular dated 07.07.2021 and she knew that she was not eligible to apply for NOC/permission, as she has not completed the mandatory service period of five years and the Circular dated 07.07.2021 was issued much prior to the date of examination i.e. 11.09.2021 and thus, the circular dated 07.07.2021 is not given retrospective effect or retrospective implementation. 14. The respondent No.4 has pleaded that the petitioner is governed by Jhalawar Hospital and Medical College Personnel's (Recruitment and Other Conditions) Employment Rules, 2017 and the Rajasthan Service Rules, 1951 or the conditions specified in the NEET PG 2021 notification, do not have any application or overriding effect over the guidelines and instructions pertaining to service conditions of the respondent No.4-Institution. 15. This Court, during the course of hearing, had directed the counsel for the respondent No.4 to file affidavit as what had prevailed in the mind of the respondent No.4 to prescribe minimum five years service for a Senior Demonstrator to undergo the PG Course. 16. 15. This Court, during the course of hearing, had directed the counsel for the respondent No.4 to file affidavit as what had prevailed in the mind of the respondent No.4 to prescribe minimum five years service for a Senior Demonstrator to undergo the PG Course. 16. In compliance of the order of this Court, counsel for the respondent No.4 filed an additional affidavit on 28.02.2022 and it is stated in the said affidavit that the respondent No.4 was facing difficulty in permitting the candidates/Doctors for higher studies due to the absence of any clear Rules/provisions for higher studies in the newly created Regulations of Jhalawar Hospital and Medical College Society. 17. The respondent No.4 has further submitted that initially vide Circular dated 13.09.2019 issued by the Rajasthan Medical Education Society (RAJMES), after completion of three years of regular and continuous service, approval for the higher studies was granted, however, the same was amended vide Circular dated 29.10.2020 whereby five years of regular and continuous service was made compulsory for obtaining approval for higher studies. The additional affidavit further makes a mention that merger of Jhalawar Hospital and Medical Education Society in the Rajasthan Medical Education Society (RAJMES) is under process and, therefore, the same condition was applied in the Circular dated 07.07.2021. 18. The additional affidavit has further assigned the reason to change the eligibility due to shortage of Medical Teachers and vacant posts in the Medical Colleges, operated under the RAJMES during MNC/MCI inspection and an obligation was placed to complete three years of continuous and regular service for getting approval for higher studies and in spite of placing the aforesaid obligation, still there was shortage of medical teachers during the MNC/MCI inspection, therefore, instead of three years of continuous and regular service, it was amended to five years of continuous and regular service, after approval from the competent authority. 19. I have heard learned counsel for the parties and perused the material available on record. 20. It would be appropriate to first quote the relevant portion of the Instruction Booklet, which provides a provision for Senior Demonstrators for their admission in the PG Medical Colleges and the same reads as under:- "2. 19. I have heard learned counsel for the parties and perused the material available on record. 20. It would be appropriate to first quote the relevant portion of the Instruction Booklet, which provides a provision for Senior Demonstrators for their admission in the PG Medical Colleges and the same reads as under:- "2. State Eligibility Degree seats : XX XX XX Provisions for Senior Demonstrators: As per Government order dated 31.03.2017 and 05.04.2017, regularly selected Senior Demonstrator working in Non- Clinical & Para Clinical Departments of Medical Colleges run by Government, Government Societies and Government Universities will be given priority (in the same department in which they are working) in Non-Clinical & Para Clinical PG Degree seats allotment. They will be considered only after completing three years of regular service in the same department qualifying the NEET examination." 21. This Court also deems it appropriate to quote the orders dated 31.03.2017 and 05.04.2017 and the same read as under:- "Government of Rajasthan Medical Education (Gr-1) Department Jaipur No.:F7(34)/DME/Acad./2014/2205 Date: 31.03.2017 ORDER In compliance with the budget announcement by Hon'ble Health Minister on 24 th March 2017 in Rajasthan Vidhan Sabha, RPSC selected Senior Demonstrators working in Non-Clinical & Para-Clinical Departments of Government Medical/Dental Colleges of Rajasthan will be given priority (in the same department in which they are working) in Non- Clinical & Para-Clinical PG seats allotment from academic year 2017-18 onwards. They will be considered only after completing three years of regular service in the same department and qualified NEET exam. Sd/- (DL Tanwar) Deputy Secretary to the Government Government of Rajasthan Medical Education (Gr-1) Department Jaipur No.:F.7(34)/DME/Acad./2014/2324 Date: 5/4/17 ORDER In continuation of previous order of this department F.7(34)/DME/Acad./2014/2205 date 31.03.2016 Senior Demonstrator selected by permanent selection committee, Jhalawar Medical College, Jhalawar and working in Non- Clinical & Para-Clinical Department of Jhalawar Medical College, Jhalawar, Rajasthan will also be included on priority (in the same department in which they are working) in Non- Clinical & Para-Clinical PG seats allotment from academic year 2017-18 onwards. They will be considered only after completing three years of regular service in the same department and qualified NEET exam. Sd/- (DL Tanwar) Deputy Secretary to the Government" 22. They will be considered only after completing three years of regular service in the same department and qualified NEET exam. Sd/- (DL Tanwar) Deputy Secretary to the Government" 22. The condition No.1 of the Circular dated 07.07.2021, being relevant for the present controversy, is reproduced hereunder:- >kykokM+ vLirky ,oa esfMdy dkWyst lkslk;Vh es fu;fer :i ls fu;qDr dkfeZdks dks mPp v/;;u dh vuqefr ds fy;s fuEuakfdr O;oLFkk dh tkrh gS%& 1- ikap o"kZ dh fu;fer ,oa fujUrj lsok ls iwoZ mPp v/;;u dh vuqefr ns; ugha gksxhA 23. This Court is primarily required to examine the validity of condition No.1 of the Circular dated 07.07.2021 whereby minimum five years of regular and continuous service is required for higher studies, as compared to three years service for Senior Demonstrators who are working in the Government Medical Colleges. This Court is also required to consider as whether the Instruction Booklet issued by the NEET PG Admission/Counselling Board will prevail or the eligibility, as provided by the employer of the petitioner, will prevail. 24. This Court, on a bare reading of the Instruction Booklet, finds that a provision was inserted for the Senior Demonstrators and as per the orders dated 31.03.2017 and 05.04.2017, regularly selected Senior Demonstrators working in the Non-Clinical & Para- Clinical Medical Colleges, run by the Government, Government Societies and Government Universities, were to be given priority in the Non-Clinical & Para-Clinical PG seats allotment and they were to be considered only after completing three years of regular service in the same department and on qualifying the NEET Examination. 25. The petitioner, considering herself eligible after rendering three years regular and continuous service, thought to participate in the NEET PG Entrance Examination, 2021 and when she qualified the same, after declaration of the NEET PG result, she thought that eligibility is conferred on her by getting permission/ NOC for pursuing PG Degree Course. 26. This Court finds that the earlier order dated 05.04.2017 had conferred eligibility on the Senior Demonstrators, working in Jhalawar Medical College on completion of three years of regular and continuous service in the same department, however, the Circular dated 07.07.2021 has now prescribed a condition of rendering minimum five years of regular and continuous service for the purpose of seat allotment and for getting NOC from the higher authorities for higher studies. 27. 27. This Court also finds that the Circular dated 13.09.2019 (filed along with the additional affidavit as Annex.AA1), whereby the Rajasthan Medical Education Society (RAJMES) provided conditions for grant of issuance of NOC for higher studies and three years regular and continuous service was required, was amended by the subsequent Circular dated 29.10.2020 (filed along with the additional affidavit as Annex.AA2), whereby earlier condition prescribed in Point No.1 of the Circular dated 13.09.2019 was substituted with five years regular and continuous service before grant of permission for pursing higher studies. This Court finds that amendment was made in respect of those Colleges which are run by the State Government by forming different Societies and these Colleges are not Government Medical Colleges. 28. This Court finds that the decision of Rajasthan Medical Education Society (RAJMES) was made applicable in respect of all those Government Societies and Government Universities which are running the Medical Colleges and as such the Senior Demonstrators working in these newly established Colleges are required to render five years regular and continuous service. 29. This Court finds that object of prescribing five years of regular and continuous service has been explained by the respondent as there remains shortage of Medical Teachers during MNC/MCI inspection and since these Colleges are not Government Colleges and are run by the Societies, these Colleges need to have proper staff and infrastructure and as such if the faculty and Senior Demonstrators are required in a particular number, the employer intends to ensure that faculty is fully available for discharge of their duties. The distinction is sought to be made by the respondent between Government Medical Colleges and the Colleges run by the Government Societies, as the Government Medical Education Society has recently been formed in the State of Rajasthan and as such they need to comply with the directions issued by the MNC & MCI from time to time. 30. This Court finds that the Instruction Booklet, though issued in January, 2021, permitted the petitioner to claim her eligibility, however, the condition of grant of NOC was issued by the Circular dated 07.07.2021 and the same was before the examinations of NEET PG, 2021 were held. 31. 30. This Court finds that the Instruction Booklet, though issued in January, 2021, permitted the petitioner to claim her eligibility, however, the condition of grant of NOC was issued by the Circular dated 07.07.2021 and the same was before the examinations of NEET PG, 2021 were held. 31. The submission of learned counsel for the petitioner that Circular issued by the respondent No.4 dated 07.07.2021 cannot be given retrospective effect, this Court is afraid to accept the said submission, as the said Circular is not given retrospective effect and whenever any candidate will apply for grant of permission for higher studies, the relevant conditions will be considered by the authorities concerned. 32. The submission of learned counsel for the petitioner that there is a artificial distinction by the respondents by prescribing two different conditions for Senior Demonstrators and the College of the respondent No.4, not being a private College, is also on the same pedestal and as such no different conditions could have been provided, suffice it to say by this Court that the Medical College run by the Government, Government Societies and the Government Universities fall in different categories and there is a valid classification for the purpose of considering the service conditions of the employees working in these Colleges. 33. This Court finds that if the Medical Colleges run by the Government provides requirement of three years of regular and continuous service for the purpose of grant of NOC for higher studies, the same yardstick cannot be applied on the Government Societies run Colleges, as these Colleges have recently been established and they need to have proper infrastructure, facility and faculty. 34. The submission of learned counsel for the petitioner that the issue with regard to grant of NOC has been considered by this Court in the case of Dr.Vidushi Sharma v. State of Rajasthan & Ors. (supra) vide judgment dated 22.07.2020 whereby this Court has upheld the Circular issued by the Government dated 05.04.2017, on careful reading of the said judgment, this Court finds that the issue before this Court in that case was with regard to considering the candidature of the candidates who completed three years of regular service vis-a-vis the persons who were working on adhoc temporary basis. This Court has upheld the decision of the State whereby persons who were working on regular basis, after regular selection, were only found eligible and the Senior Demonstrators with regular service were allowed to compete against the posts which were meant for PG Medicial Degree Course. This Court has upheld the order of the Government dated 31.03.2017 and had only made observation in the last concluding para that if sufficient number of regularly selected candidates were not available, then the authorities can keep in mind the recommendations made by the NEET PG Counselling Board highlighting non-availability of Senior Demonstrators with three years of regular service. 35. Accordingly, this Court does not find any force in the present writ petition and the same is hereby dismissed.