Himachal Pradesh High Court
Dr. Varun Gautam & Others vs State Of H.P. & Others on 10 September, 2024
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
1 ( 2024:HHC:8177 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.8925 of 2024 a/w CWPs No.9134 & 9194 of 2024 .
Reserved on:04.09.2024
Pronounced on: 10.09.2024
CWP No.8925 of 2024
Dr. Varun Gautam & Others ...Petitioners
Versus
State of H.P. & Others ...Respondents
________________________________________________________________ CWP No.9134 of 2024 Himachal Medical Officers Association ...Petitioner Versus State of Himachal Pradesh & Others ...Respondents ________________________________________________________________ CWP No.9194 of 2024 Dr. Sanya Prem Machhan ...Petitioner Versus State of Himachal Pradesh & Others ...Respondents ________________________________________________________________ Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?CWP No.8925 of 2024
For the petitioners : Mr. Ajay Chandel, Advocate.
For the respondents : Mr. Gobind Korla, Additional Advocate General, for respondents no.1, 2 & 5.
Mr. Sandeep Pandey, Advocate, for respondents no.3 & 4.::: Downloaded on - 10/09/2024 20:31:53 :::CIS 2
( 2024:HHC:8177 ) CWP No.9134 of 2024 For the petitioner : Mr. Ravinder Singh Jaswal, Advocate.
For the respondents : Mr. Gobind Korla, Additional Advocate .
General, for respondents no.1 to 3.
Mr. Sandeep Pandey, Advocate, for respondent no.4.CWP No.9194 of 2024
For the petitioner : Mr. Sunil Mohan Goel, Advocate.
For the respondents : Mr. Gobind Korla, Additional Advocate General, for respondents no.1 to 3.
Mr. Sandeep Pandey, Advocate, for respondent no.4.
M.S. Ramachandra Rao, Chief Justice.
These Writ petitions have been filed by the petitioners challenging a Notification dt. 04.09.2023 issued by the Special Secretary (Health) to the Government of Himachal Pradesh, altering the norms prescribed in Clause 5.1.4 of Policy for Regulating Admissions to various Post Graduation and Super Specialist Courses in Medical Education, applicable in the State of Himachal Pradesh dt. 27.02.2019 (in short "the 2019 Policy").
2. All the petitioners are in-service Doctors employed as Medical Officers at various stations by the State Government of Himachal Pradesh.
3. On 27.02.2019, the State Government had framed the above referred Policy, providing an incentive for pursing Post Graduation within the State through NEET-PG Examination.
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4. The above Policy dt. 27.02.2019 came to be amended on 04.09.2023 (Annexure P-2) ( for short '2023 Amendment') by substituting the following for Clause 5.1.4 in the 2019 Policy:-
.
"Clause 5.1.4 of PG/SS Policy notified on 27.2.2019 is amended and read with amended Annexure-A to the extent as under:
(i). In case a Medical officer has served in more than one category of area, the mandatory service period will be calculated on pro-rata basis as the case may be.
(ii) The GDO shall be entitled for incentive in terms of percentage of marks obtained in NEETPG based on their services rendered in various field postings as per revised Annexure-A. This incentive will be subject to maximum of 30%. The percentage incentive shall be computed on pro-rata basis for the actual duration of service rendered in a particular field posting as per the following formula:
Incentive Duration served (in days X prescribed incentive Percentage for 365 For particular Institution a particular field Posting (Annexure-A) In case a particular GDO has been posted at one particular station but he is deputed for some period to another station, the actual duration served at a particular field posting will be taken into account for the calculation of incentive. This incentive shall be available to only those GDOs who are in the active service of the State in a continuous manner and for the purpose of computing the incentive, the present continuous service shall be taken into account; meaning thereby, any doctor who has served as a GDO in the past but has subsequently resigned from GDO ship shall not be eligible to avail benefit of this incentive on the basis of any previous service. Similarly, if he/she subsequently joins GDO ship again, the incentive will be calculated taking into consideration the latest period of service reckoned from the date when he/she is in continuous service without any break.
(Annexure-A) ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 4 ( 2024:HHC:8177 ) Incentive percentage and mandatory service for GDOs for doing Post Graduation course through NEET-PG within the State of Himachal Pradesh.
Category Name of Medical Area wise Prior
District Blocks/Health percentage Mandatory
.
Institutions incentive service before
under the for one availing
areas year of incentive
service
Lahaul Spiti and
& Spiti primary
Health Centres
Tingrit, Tindi,
Dracha, 10 One year
(a) Gemur and
Hinsa of
Lahaul area
Kinnaur Pooh
Chamba Pangi
Sangla &
Tribal/
Nichar, CHC
A Remotest Bhabanagar &
Area Kinnaur RH Reckong
Peo & CHC
(b) Bhabanagar
and RH 8 Two years
Reckong Peo
Lahaul Remaining
& Spiti Health
Institutions in
Lahaul area
Chamba Bharmour
Hard/ -- Shimla Area within
B Difficult Dodra Kawar
Areas Sub-division of
Chirgaon
Medical Block
Chamba Kihar and 8 Two years
& Tissa
-- Kangra Bara Bhangal
and Chhota
Bhangal area
of block
Mahakal.
Difficult -- Shimla Remaining
C Rural areas of block
Areas Chirgaon and
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Nerwa and
Kupvi
Mandi Janjehli and
entire Chhohar 6 Three years
Valley
Sirmaur Medical Block
.
Shillai &
Sangrah
All other -- -- --
rural
areas of 4 Three years
Himachal
Pradesh
Provided that no incentive will be given for service in urban areas and the mandatory period for service in these areas shall be four years.
Provided further that as per amended Annexure-A prescribed mandatory services under various categorized areas of the State will qualify for admissions to PG (MD/MS) and PG(MDS) courses through NEET-PG within the State and period beyond prescribed mandatory services shall be counted for incentives as per present amendment and PG/SS policy provisions 27.2.2019. Thus the concerned provisions of the PG/SS Policy stands superseded to this extent."( emphasis supplied)
5. Thus by virtue of the 2nd proviso introduced vide 2023 Amendment dt. 04.09.2023, the actual duration of service rendered in a particular field posting will not be counted, but only service beyond the mandatory service prescribed would be counted for incentives.
Contentions of petitioners
6. Petitioners contend that the incentive for admission for PG Course was given due to paucity of Doctors in stations which are Tribal, Hard and Rural and also in view of the problems being faced by them in peripheral postings due to harsh climatic conditions as well as non-availability of basic amenities of life.
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7. They contend that when they joined the services of the respondents- State, they legitimately expected in view of the 2019 Policy that after serving the State at categorized stations, they will be entitled for the incentives for .
admission to the PG Courses in the State Medical Colleges as per the provisions of the said Policy. But to their surprise, the 2023 Amendment providing period of mandatory service for availing benefit of the incentive, and counting only period beyond mandatory service for the purpose of incentive, has debarred them from taking benefit of the incentive, and the same is wrong, illegal, arbitrary & unconstitutional and without any rationale.
8. They contend that the respondents have to be directed to count their actual duration of services rendered in the field postings as per the 2019 Policy and not as per the 2nd proviso introduced by the 2023 Amendment.
9. They contend that they had a vested right for counting of their services rendered in such areas for the purpose of incentives as per the 2019 Policy and that vested right had been taken away by the respondents by issuing the 2023 Amendment and introducing the 2nd proviso.
10. According to them, the impugned 2023 Amendment is given effect retrospectively and deprives them of their vested right.
11. Petitioners also contend that the State cannot be permitted to take away the right accrued in favour of the petitioners by one stroke of pen without assigning any reason as to why in-service candidate is to serve the State in ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 7 ( 2024:HHC:8177 ) difficult rural areas for grant of incentives for three years and it is only the period beyond 3 years that would be counted for the incentives.
12. According to the petitioners, Clause 12.1 provides that a General Duty .
Officer, who has served in a field posting in the past for award of incentive marks as per the 2019 Policy, would be entitled to the incentive, and without amending the said Clause, the respondents have amended the "2019 Policy/Circular" through the Notification dt. 04.09.2023 and taken away the said benefit by 2nd proviso to Clause 5.1.4.
13. Petitioners contend that the only object of prescribing mandatory service is that in-service candidates before availing the benefit of grant of incentive should at least have in his or her mind that before grant of incentives/marks, they have to compulsorily serve in that area, and to deprive such candidates of the grant of incentives/marks, would serve no plausible purpose, particularly, when the in-service candidate has to furnish a bond to serve the State for a specified period on completion of his/her PG. Such in-service quota is an encouragement to the in-service Doctors to offer their services and their expertise to the State to meet the requirement of the common public, since effective and competent medical treatment is not available in rural & difficult areas.
14. They contend that the State can keep mandatory period of service in difficult/hard/rural areas, but it cannot ignore the services rendered before completion of mandatory period for the purpose of grant of incentives/marks. ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 8
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15. Petitioners also contend that if there are not enough in-service Doctors who can be granted the incentives because of the 2023 Amendment, the left-out seats of in-service Doctors will go to the All India Quota to be filled up by the .
Medical Counseling Committee, and is not, therefore, in public interest. Consideration by the Court
16. The issue about providing for reservation for in-service candidates working in the rural, tribal and difficult areas came to be considered by the Supreme Court in State of U.P. & Ors. vs. Dr. Dinesh Singh Chauhan1.
In that case, the Supreme Court was considering the MCI Regulations which provided such reservation only in Post Graduate Diploma Courses but not in Post Graduate Degree Courses by the State Governments.
The Supreme Court took a view that the State Government has no authority to enact any law providing for reservation for in-service candidates in Post Graduate Degree Course.
17. But the 5 years later this view was not accepted and the said judgment was overruled in Tamil Nadu Medical Officers Association and Ors. vs. Union of India & Ors2.
In Tamil Nadu Medical Officers Association and Ors (2 supra), the Supreme Court held that allotment of a specific percentage of seats in post graduate degree courses within its State Quota and providing preferential treatment to a particular class, is not beyond the legislative competence of the 1 (2016) 9 SCC 749 2 (2021) 6 SCC 568 ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 9 ( 2024:HHC:8177 ) State, as the State Government has the right to provide reservation in the field of employment and education, looking to the specific/special need of public requirement in the particular area.
.
It held that the State was within its power and authority to provide such a preferential treatment to provide better public health in the rural, tribal and hilly areas.
The Supreme Court noted that such a reservation for in-service candidates existed for admission to Post Graduate Diploma Courses as per the MCI Regulations, but was not given for Post Graduate Degree Courses, and there was no reason why such in-service reservation cannot be granted to Post Graduate Degree Courses.
The said decision is relied upon by the petitioners as well.
18. The above decision in so far as power of the State to provide reservation for in-service candidates for admission into Post Graduate Degree Courses is certainly relevant, but the instant case is not one where the State has totally cancelled such reservation.
19. Clause 5.1.1 and Clause 5.1.4 of the Policy of 2019 as amended on 04.09.2023, indicates that pass in NEET-PG Exam is necessary for making a claim for entitlement for incentive under the Policy.
20. As per Clause 5.1.4 as originally contained in the 2019 Policy read with Annexure A-2 thereto, it was sufficient for a General Duty Officer to claim the incentive on completion of one year of service and certain percentage is ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 10 ( 2024:HHC:8177 ) awarded for working in specific areas, which varies from zero percentage in urban areas to ten percent.
21. There is a formula for calculating the incentive percentage, which also .
remains the same both in the 2019 Policy and its Amendment of 2023, but the difference is in the Annexure-A to 2023 Amendment which prescribes different periods of mandatory service in different class of areas before availing incentives: for certain tribal/remotest areas, mandatory service before availing the incentive is altered to one year and two years; for hard/difficult areas it is altered to two years; for difficult rural areas it is altered to three years; and all other rural areas also it is altered for three years.
22. From this, it appears that though prior to the amendment, minimum one year's service was sufficient to avail the incentive, but after the 2023 Amendment for some areas, because of the change in the Policy, more period of service is prescribed for availing the incentive depending on the place where the service was rendered, which may go upto three years.
23. The 2nd proviso introduced in the 2023 Amendment, makes it clear that only the period beyond the prescribed mandatory service would be counted for incentive.
24. The plea of the petitioners that they had a vested right for claiming the incentive, because they have joined the service after 2019 and before the 2023 Amendment, cannot be countenanced because unless they pass in the NEET-PG Exam, they are not entitled to claim such entitlement at all. ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 11
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25. Therefore, the right which they had was not a vested right, but only a contingent right depending on the contingency of a pass in the NEET-PG Exam.
.
26. We also do not accept the contention of the petitioners that there is a retrospective amendment to the Policy by the State Government, because the amendment was brought into effect for the Academic Session 2024-25 on 04.09.2023 and has only operation in future, i.e. subsequent to the said date.
27. If it was to be retrospective, then all those who had already secured admissions in the NEET-PG Course prior thereto i.e prior to 4.9.2023 , would have had to give up their admissions and join duties, which is certainly is not the case. Therefore, this plea is also rejected.
28. As regards the plea of arbitrariness and irrationality are concerned, the fact that for service in different areas classified as urban areas, tribal/remotest areas, hard/difficult areas, difficult rural areas and all other rural areas, mentioned in the amendment, different periods of mandatory service are laid down by the 2023 Amendment, indicates application of mind by the respondents to the place of service and the relative hardship experienced by the General Duty Officers (GDOs) serving in those areas.
29. While considering the reservation provided for in-service candidates in Post Graduate Diploma Courses, the Supreme Court in Dinesh Singh Chauhan (supra-1), noted that Regulation-9 of the MCI Regulations contemplated grant of incentive marks for each year of service in remote and/or difficult areas upto ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 12 ( 2024:HHC:8177 ) a maximum 30% of the marks obtained in the NEET Exam, and that the same having been framed by an expert body on past experience, and so they cannot be said to be excessive, unreasonable or irrational. This was not disturbed in .
Tamil Nadu Medical Officers Association and Ors( 2 supra).
30. In Para 35 of the said judgment in Dinesh Chauhan's (supra-1), the Supreme Court observed as under:-
"35. As aforesaid, Regulations have been framed by an Expert Body based on past experience and including the necessity to reckon the services and experience gained by the in-service candidates in notified remote and difficult areas in the State. The proviso prescribes the measure for giving incentive marks to in-service candidates who have worked in notified remote and difficult areas in the State. That can be termed as a qualitative factor for determining their merit. Even the quantitative factor to reckon merit of the eligible in-service candidates is spelt out in the proviso. It envisages giving of incentive marks at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas up to 30% of the marks obtained in NEET. It is an objective method of linking the incentive marks to the marks obtained in NEET by the candidate. To illustrate, if an in-service candidate who has worked in a notified remote and/or difficult area in the State for at least one year and has obtained 150 marks out of 200 marks in NEET, he or she would get 15 additional marks; and if the candidate has worked for two years, the candidate would get another 15 marks. Similarly if the candidate has worked for three years and more, the candidate would get a further 15 marks in addition to the marks secured in NEET. 15 marks out of 200 marks in that sense would work out to a weightage of 7.5% only, for having served in notified remote and/or difficult areas in the State for one year. Had it been a case of giving 10% marks en bloc of the total marks irrespective of the marks obtained by the eligible in-service candidates in NEET, it would have been a different matter. Accordingly, some weightage marks given to eligible in-service candidate linked to performance in NEET and also the length of service in remote and/or difficult areas in the State by no standard can be said to be excessive, unreasonable or irrational. This provision has been brought into force in larger public interest and ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 13 ( 2024:HHC:8177 ) not merely to provide institutional preference or for that matter to create separate channel for the in-service candidate, muchless reservation. It is unfathomable as to how such a provision can be said to be unreasonable or irrational."
(emphasis supplied) .
It held that the proviso to Rule 9(4) of the MCI Regulations prescribed the measure for giving incentive marks to in-service candidates, who have worked in notified remote and difficult areas in the State, which can be termed as a qualitative factor for determining their merit and even a quantitative factor to reckon merit of the eligible in-service candidates was spelt out in the proviso; it envisaged giving of incentive marks at 10% of the marks obtained for each year of service in remote and/or difficult areas up to 30% of marks obtained in the NEET; and that it is an objective method of linking the incentive marks to the marks obtained in NEET by the candidate; and that it is in larger public interest.
31. The said logic equally applies to the amendment made in Clause 5.1.4 by the Notification dt. 04.09.2023, and in our opinion, there are both qualitative and quantitative factors being taken into account by the State Government in considering grant of incentives to in-service candidates depending on the place of work. So the same cannot be said to be arbitrary, irrational or illegal.
32. We may point out that the services rendered by the petitioners in any area are not being excluded either for purpose of any other service benefit such as seniority, increment, promotion, pension etc. and the petitioners, therefore, ::: Downloaded on - 10/09/2024 20:31:53 :::CIS 14 ( 2024:HHC:8177 ) cannot complain that the 2023 Amendment which only dealt with the issue of grant of incentives for purpose of reservation for in-service candidates, merely because it increased period of mandatory service for work in different classes .
of areas, is illegal and unconstitutional.
33. It is not disputed that in-service candidates are paid salary by the State Government in the event of their securing a seat in the PG Course, and such a seat is in a reserved quota and there are good chances of such Doctors getting seats of their choice in the reserves quota, as compared to those who do not claim reservation. r
34. In the larger public interest of providing services to people living in remote/difficult/hard/tribal areas, prescription of more period of service for claiming the incentive, cannot be said to be arbitrary or irrational. In fact, it is in the larger public interest.
35. Therefore, we do not find any merit in these Writ petitions and the same are accordingly dismissed.
36. Pending miscellaneous application(s), if any, shall also stand disposed of.
(M.S. Ramachandra Rao)
Chief Justice
(Satyen Vaidya)
September 10, 2024 Judge
(Yashwant)
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