Rajasthan High Court - Jaipur
Dr. Sneha Tiwari W/O Shri Shatru Soodan ... vs State Of Rajasthan on 15 May, 2023
Bench: Manindra Mohan Shrivastava, Anil Kumar Upman
[2023/RJJP/011080]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Special Appeal (Writ) No. 1176/2022
In
S.B. Civil Writ Petition No.14752/2022
Dr. Sneha Tiwari W/o Shri Shatru Soodan Tiwari D/o Shri Subhash
Chand Tiwari, Aged About 34 Years, R/o Villa B-22, Eldeco Eden
Park, Neemrana - 301705 At Present Q.No. 36, Government
Hospital Mundawar, District Alwar.
----Appellant
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Medical And Health Department, Government Secretariat,
Jaipur.
2. Principal Secretary, Medical Education Department,
Government Secretariat, Jaipur.
3. Director, Medical And Health Services, Swasthya Bhawan,
Tilak Marg, C-Scheme, Jaipur.
4. Chief Medical And Health Officer, Alwar, District Alwar, (Raj.)
5. Neet MDS Admission/ Counselling Board, 2022, Through Its
Chairman Having Its Office At Government Dental College,
Subhash Nagar, Behind T.b. Hospital, Jaipur (Raj.)
6. Dr. Rohit Barak S/o Shri Tariph Singh Barak, Aged About 32
Years, Currently Pursuing Post Graduation In Pedodontia
And Posted At Department Of Pedodontics, Rajasthan
University Of Health Sciences College Of Dental Science,
Near Doodh Mandi, Subhash Nagar, Bani Park, Jaipur-
302016
7. Dental Council Of India, Through Secretary, Aiwan-E-Ghalib
Marg, Kotla Road, Temple Lane, New Delhi, Delhi - 110002.
----Respondents
For Appellant(s) : Mr. Vigyan Shah Advocate with Mr. Harendar Neel Advocate, Ms. Pragya Seth Advocate & Mr. Akshit Gupta Advocate.
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[2023/RJJP/011080] (2 of 37) [SAW-1176/2022]
For Respondent(s) : Mr. Harshal Tholia Advocate on behalf
of Dr. Vibhuti Bhushan Sharma
Advocate.
Mr. Angad Mirdha Advocate
Mr. Ashwinee Kumar Jaiman Advocate.
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Judgment Reportable 15/05/2023 Heard.
This appeal is directed against order dated 20.10.2022 passed by the learned Single Judge, whereby, appellant's/writ petitioner's challenge to the withdrawal of the benefit of rural service of 750 days for the purpose of granting admission in Master of Dental Surgery (MDS) Course, has been rejected. Prayer made by the appellant/writ petitioner for issuance of direction to the respondents to grant her benefit of service rendered in rural area for more than two years by awarding 20% weightage marks and inclusion in the overall merit for the purposes of admission in MDS Course has consequently, been rejected.
Quint essential facts necessary for adjudication of controversy involved in the appeal are that the appellant/writ petitioner was initially appointed on the post of Dental Officer on 12.03.2015. On 15.09.2018, appellant/writ petitioner was transferred to Community Health Center (hereinafter referred to as the 'CHC'), Mundawar, District Alwar where she remained posted until she was transferred to serve in CHC in a rural area at CHC, Shahjahanpur vide order dated 02.01.2019. After having worked there more than one year, she was again relieved and joined at CHC, Mundawar where she was previously posted. On 23.05.2021, appellant/writ petitioner was (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (3 of 37) [SAW-1176/2022] again posted in Primary Health Center (hereinafter referred to as 'PHC'), Ajaraka. This posting of the appellant/writ petitioner was in rural area during COVID-19 pandemic. She worked at PHC, Ajaraka till 10.05.2022. The appellant/writ petitioner, desirous of getting admission in MDS Course, participated in NEET PG Examination. Vide order dated 03.06.2022, State Government required different Controlling Officers to send relevant information of in-service candidates with regard to their experience in remote/difficult/rural areas as in-service candidates under the provisions contained in the Dental Council of India, Master of Dental Surgery Course Regulations, 2017 (hereinafter referred to as 'the Regulations of 2017') were entitled to weightage marks in case they served in remote/difficult/rural areas. The appellant/writ petitioner applied for grant of weightage marks. After necessary verification regarding appellant's/writ petitioner's service in rural areas for a period of 750 days, i.e., more than two years, a certificate of service in rural areas was issued in favour of the appellant/writ petitioner. When respondents issued list of successful candidates on 12.08.2022 enlisting those candidates, who are eligible for award of weightage marks for having worked in rural areas, name of the appellant/writ petitioner also appeared and she was given benefit of rural service of 750 days.
However, a complaint was made by respondent-Dr. Rohit Barak to the authorities and he also filed S.B. Civil Writ Petition No.12417/2022 challenging the award of weightage marks to the appellant/writ petitioner. It appears that taking cognizance of the said complaint, while issuing a provisional merit list of PG Dental candidates on 27.09.2022, appellant/writ petitioner was placed at S.No.187, denying weightage of rural services and bonus marks. (Downloaded on 11/11/2023 at 05:24:59 PM)
[2023/RJJP/011080] (4 of 37) [SAW-1176/2022] Aggrieved by the said action of the official respondents in denying benefit of weightage marks despite appellant/writ petitioner having worked in rural areas, writ petition was filed by the appellant/writ petitioner before this Court.
While the case of the appellant/writ petitioner was that as she had actually worked in a rural area, firstly while remained posted at CHC, Shahjahanpur and, thereafter, at PHC Ajaraka, which were admittedly declared as rural area, her entitlement to grant of weightage marks for having worked in rural areas could not be denied, the stand taken by the official respondents in reply to the writ petition was that the original place of posting of the appellant/writ petitioner was at CHC, Mundawar, which is urban/city area and her posting at CHC, Shahjahanpur was only under a working arrangement and further her posting at PHC, Ajaraka was also under special circumstances during COVID-19 pandemic and, therefore, even if, she had actually worked in the rural areas, she could not be granted benefit of weightage marks. It was also the case of the respondents that as the appellant/writ petitioner was posted to work in rural areas under working arrangement, which was not her substantive posting, she was not sanctioned rural allowance and, therefore, as per rules, the benefit of weightage marks could not be granted and the action of the respondents was just and proper.
Learned Single Judge held that as the appellant/writ petitioner was posted in the rural area under working arrangement, which was not her substantive posting and her original place of posting was in urban area and further for that reason, she was not held entitled to rural allowance, the action of the official respondents in denying benefit of weightage marks did not warrant any interference. (Downloaded on 11/11/2023 at 05:24:59 PM)
[2023/RJJP/011080] (5 of 37) [SAW-1176/2022] Assailing correctness and validity of the order passed by the learned Single Judge, learned counsel for the appellant/writ petitioner argued that the entitlement to benefit of weightage marks for having worked in rural areas is statutory in nature, provided under the Regulations of 2017. It is the contention of learned counsel for the appellant/writ petitioner that award of weightage marks are as a measure of incentive to the in-service candidates for having actually worked in a rural area under whatever arrangement. Therefore, once the appellant/writ petitioner was held entitled to weightage marks under the statutory provisions, in the absence of their being any exception carved out in the regulations to deny benefit of weightage marks on those grounds which prevailed with the respondents was illegal. It is also argued that the posting of the appellant/writ petitioner at CHC, Shahjahanpur and at PHC, Ajaraka is admittedly a rural posting in view of the Notification dated 14.04.2020 issued by the State Government which defined and enlisted remote/difficult/rural areas, which also included CHC, Shahjahanpur and PHC, Ajaraka at S.No.226 and 187 respectively. It is also contended that once the entitlement to weightage marks on the basis of having worked in the rural area is conferred under the law, the respondents' action in denying the benefit on the ground of non payment of rural allowance or on the ground that the posting of the appellant/writ petitioner was under working arrangement and not by way of substantive posting looses its significance and virtually amounts to amending the provisions contained in the Regulations of 2017, which is beyond the scope and ambit of power of the State Government to lay down the conditions for grant of weightage marks. As the appellant/writ petitioner has been illegally deprived of admission to the MDS Course in the present session, she is not only (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (6 of 37) [SAW-1176/2022] entitled to admission in the next academic session in the MDS Course, but also to appropriate compensation for loss. In support of his submissions, learned counsel for the appellant/writ petitioner relied upon the judgments of the Hon'ble Supreme Court in the cases of Dr. Snehelata Patnaik and Others Versus State of Orissa and Others, (1992) 2 Supreme Court Cases 26, State of Uttar Pradesh and Others Versus Dinesh Singh Chauhan, (2016) 9 Supreme Court Cases 749, Dr. Amit Bagra and Others Versus State of Rajasthan and Others. (Special Leave to Appeal C No.11692/2017, decided on 15.12.2017), S. Krishna Sradha Versus State of Andhra Pradesh and Others, (2020) 17 Supreme Court Cases 465, National Medical Commission Versus Mothukuru Sriyah Koumudi & Others, (Civil Appeal No.3940 of 2020, decided on 07.12.2020 and the Judgment of the Jammu and Kashmir and Ladakh High Court at Srinagar in the case of UT of J & K and Others Versus Dr. Bhat Ab. Urban Bin Aftab and Others (LPA No.140/2022 and CM No.4269/2022, decided on 13.09.2022), Andhra Pradesh High Court at Amaravati in the case of Thota Sneha Kiran Versus Dr. NTR University of Health Sciences and Others (Writ Petition No.15143 of 2019, decided on 01.10.2021), the judgment of the Division Bench of this Court in the case of Nirmala Royal and Others Versus Dr. Kamlendra Singh Chaudhary and Others & other connected appelas, 2019 (2) RLW (Raj.) 1058, the judgment of Single Bench of this Court in the case of Sourabh Kumar Jeengar Versus State of Rajasthan and Others (S.B. Civil Petition No.15014/2020, decided on 09.03.2021 & the judgment of the Single Bench of this Court at Principal Seat Jodhpur in the case of Mukesh Kumar Kumawat Versus State of (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (7 of 37) [SAW-1176/2022] Rajasthan & Others (S.B. Civil Writ Petition No.10249/2022, decided on 25.08.2022.).
Learned counsel for the respondents, on the other hand, would submit that the benefit of weightage marks is intended to be provided by way of an incentive to those, who have worked in rural areas by virtue of substantive posting. It is argued that the authority to post the Medical Officer rests with the State and not with any other authority. May be, because of certain exigencies of service, the Controlling Chief Medical Officer (hereinafter referred to as 'CMHO') posted the appellant/writ petitioner in a CHC and PHC in rural areas, which was only by way of working arrangement aimed to serve rural masses as also to serve in rural areas due to unprecedented outbreak of COVID-19 virus.
He would next submit that the posting of the appellant/writ petitioner at CHC, Shahjahanpur and PHC Ajaraka was never approved by the State Government and after having served in those areas under temporary working arrangement, the appellant/writ petitioner was again sent back to her original place of posting at CHC, Mundawar. It is also submitted that later on, when it was brought to the notice of the authority that the CHMO had posted the appellant/writ petitioner in rural area, even disciplinary action is proposed against the concerned officer. According to learned counsel for the State, unless a Medical Officer is found entitled to and actually paid rural allowance, he would not qualify for benefit of weightage marks for having worked in rural areas. In the case of the appellant/writ petitioner, she was not granted rural allowance, therefore, the appellant's/writ petitioner's claim for grant of weightage marks was rightly rejected. Learned counsel for the State further submitted that in any case, the issue is rendered academic (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (8 of 37) [SAW-1176/2022] because now the appellant/writ petitioner cannot be allowed admission in the next academic session against seats of MDS Courses in Dental College as these seats are now to be filled up only on the basis of fresh NEET PG Examination from amongst the list of selected candidates, who have now been selected in subsequent NEET PG Examination in which the appellant/writ petitioner had not appeared. In support of his contentions, learned State counsel has placed reliance upon the judgments of the Hon'ble Supreme Court in the cases of Dr. Amit Bagra Versus State of Rajasthan & Others (Special Leave to Appeal (C) No.(s). 11692/2017 and other connected appeals, decided on 15.12.2017) & Maharishi Markandeshwar University and Another Versus Akriti Sharma and Others (Civil Appeal No.6809 of 2022, decided on 19.09.2022), the judgments of the Division Bench of this Court in the cases of Dr. Neha Choudhary Versus State of Rajasthan & Others (D.B. Special Appeal Writ No.201/2022 and other connected appeal, decided on 25.01.2022), Dr. Nirmala Royal & Others Versus Dr. Kamlendra Singh Chaudhary & Others (D.B. Special Appeal Writ No.512/2019 & other connected appeals, decided on 29.03.2019), State of Rajasthan Versus Dr. Ajeet Bagra & Others (D.B. Special Appeal Writ No.501/2018 and other connected appeals, decided on 10.04.2018) and the judgments of the Single Bench of this Court in the cases of Dr. Kamlendra Singh Chaudhary & Others Versus State of Rajasthan & Others (S.B. Civil Writ Petition No.4765/2019, decided on 15.03.2019) & Dr. Rakesh Kumar Saini Versus State of Rajasthan & Others (S.B. Civil Writ Petition No.9390/2022 and other connected petition, decided on 25.08.2022).
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[2023/RJJP/011080] (9 of 37) [SAW-1176/2022] We have given our anxious consideration to submissions made by learned counsel for the parties and perused the records as also the order passed by the learned Single Judge.
It is not in dispute that while the appellant/writ petitioner was posted and working at CHC, Mundawar, she was posted to work at CHC, Shahjahanpur vide order dated 02.01.2019. The said order reads that as per instructions, the appellant/writ petitioner, who is treated as surplus, is posted to work under working arrangement at CHC, Shahjahanpur against a vacant post of Dental Officer.
Indisputably, appellant/writ petitioner worked there until she was relieved to again join at her original place of posting, i.e., CHC, Mundawar vide order dated 11.02.2020. The appellant/writ petitioner, thus, remained posted and actually worked as a Dental Officer at CHC, Shahjahanpur for more than one year against a vacant post. The order dated 02.01.2019 by which the appellant/writ petitioner was posted at CHC, Shahjahanpur, clearly reveals that the copy of order was sent for information to the Director, Health Services, Rajasthan and other concerned Authorities. Neither the Director, nor any other authority instructed the CMHO, Alwar not to post the appellant/writ petitioner at CHC, Shahjahanpur. Moreover, the said order clearly state that the posting of the appellant/writ petitioner was as per instructions, which would clearly mean that the posting of the appellant/writ petitioner in a rural area was on the instructions and directions of the higher authorities. Therefore, it is quite clear that only under the instructions of the higher authorities, the appellant/writ petitioner was posted against the vacant post of Dental Officer in CHC, Shahjahanpur where she actually worked for more than one year until she was sent back to original place of posting at CHC, Mundawar.
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[2023/RJJP/011080] (10 of 37) [SAW-1176/2022] It is also not in dispute that, later on, during outbreak of COVID-19 pandemic, on administrative exigencies and to prevent spread of COVID-19 pandemic and other diseases, the appellant/writ petitioner was again sent to PHC, Ajaraka vide order dated 23.05.2021. This order was on the instructions of the CMHO, Alwar. Further perusal of the order dated 23.05.2021 shows that the appellant/writ petitioner was posted at PHC, Ajaraka in administrative exigencies to serve rural masses during COVID-19 pandemic. The appellant/writ petitioner again served in the rural area until she was sent back to the original place of posting at CHC, Mundawar vide order dated 10.05.2022. The fact that the posting of the appellant/writ petitioner was in acute administrative exigencies during COVID-19 pandemic situation is revealed from order dated 27.03.2020 of the State Government by which the concerned CMHOs were required to take all necessary measures to prevent spread of COVID-19 virus. It was in view of such extraordinary circumstances giving rise to acute administrative exigencies that the appellant/writ petitioner was posted to work at PHC, Ajaraka.
All through during the period when the appellant/writ petitioner was sent to work and serve rural masses in rural areas firstly at CHC, Shahjahanpur and, thereafter, at PHC, Ajaraka, which are admittedly rural areas, none of the higher authority raised objection to such posting. A certificate of having actually worked for 750 days was also issued in favour of the appellant/writ petitioner to the effect that she had worked for 750 days in rural areas. The fact that the appellant/writ petitioner actually served in rural areas for 750 days is not disputed. The aforesaid fact with regard to the posting of the appellant/writ petitioner and that she had actually worked in rural (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (11 of 37) [SAW-1176/2022] areas and served rural masses as doctor both in normal as well as in COVID-19 pandemic situation are admitted position on record.
The appellant/writ petitioner, desirous of pursuing higher studies, participated in the NEET PG Examination for admission to Dental PG Course (MDS) in the Dental College for the academic Session of 2022.
Admissions to Dental PG Courses are governed by the Regulations framed and amended from time to time by the Dental Council of India in exercise of powers conferred under Section 20 of the Dentist Act, 1948. The Council initially framed Regulations known as Dental Council of India Revised MDS Course Regulations of 2007 which underwent amendments from time to time. Vide Notification dated 05.11.2017, the Dental Council of India framed new Regulations called the Dental Council of India, Master of Dental Surgery Course Regulations, 2017. Regulation 7 provided for qualifying criteria for admission to Postgraduate Courses. This also included provision with regard to grant of weightage in the marks to those who served in remote and/or difficult or rural areas. This provision also underwent amendment vide 2 nd amendment Notification dated 18.09.2018 published in the Gazette of India. After the amendment, the relevant provision, which existed and was in force at the relevant time when pre PG Entrance Examination for admission to MDS Course was conducted by the respondents in which the appellant/writ petitioner participated and claimed weightage in marks on the basis of she having served in the rural area, is reproduced hereinbelow:-
"7. Qualifying criteria for admission to post-graduate courses._ (1)..............x..............x............x...............(Downloaded on 11/11/2023 at 05:24:59 PM)
[2023/RJJP/011080] (12 of 37) [SAW-1176/2022] (2) The reservation of seats in dental college/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 NEET Test and candidates shall be admitted to post-graduate courses from the said merit list 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 or rural areas upto the maximum of 30% of the marks obtained in NEET. The remote, difficult and rural areas shall be as defined by State Government/competent authority from time to time."
The aforesaid provision contained in the Regulations of 2017 provided for incentive upto 10% of the marks obtained for each year of service in remote and/or difficult or rural areas upto the maximum of 30% of the marks obtained in National Eligibility-cum- Entrance Test. The Regulation, however, left it in the discretion of the State to define remote, difficult and rural areas.
On rational, logical and fair interpretation of the aforesaid provision contained in the Regulations of 2017, it is discernible that the Regulation seeks to provide incentive to those doctors (in- service candidates), who have served in remote/difficult/rural areas.
It is common knowledge that the Government doctors/dental surgeons are reluctant to serve in rural areas. The State Health Services in rural areas are hampered as many doctors/ dentists/surgeons, who are posted in the remote/difficult/rural areas avoid working in those areas and devise ways and means like attachment in urban areas and many other ways and means to somehow avoid working and serving rural masses.
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[2023/RJJP/011080] (13 of 37) [SAW-1176/2022] In the case of Dr. Snehelata Patnaik and Others Versus State of Orissa and Others (Supra), the Hon'ble Supreme Court while explaining the ratio of decision of the Hon'ble Supreme Court in the case of Dr. Dinesh Kumar and Others Versus Motilal Nehru Medical College, Allahabad and Others (Supra) made following pertinent observations:-
"1. We have already dismissed the writ petition and special leave petitions by our order dated December 5, 1991. We would, however, like to make a suggestion to the authorities for their consideration that some preference might be given to in-service candidates who have done five years of rural service. In the first place, it is possible that the facilities for keeping up with the latest medical literature might not be available to such in-service candidates and the nature of their work makes it difficult for them to acquire knowledge about very recent medical research which the candidates who have come after freshly passing their graduation examination might have. Moreover, it might act as an incentive to doctors who had done their graduation to do rural service for some time. Keeping in mind the fact that the rural areas had suffered grievously for non-availability of qualified doctors giving such incentive would be quite in order. Learned counsel for the respondents has, however, drawn our attention to the decision of a Division Bench of two learned judges of this Court in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, (1986) 3 SCC page 727, 740. It has been observed there that merely by offering a weightage of 15 per cent to a doctor for three years' rural service would not bring about a migration of doctors from the urban to rural areas. They observed that if you want to produce doctors who are MD or MS, particularly surgeons, who are going to operate upon human beings, it is of utmost importance that the selection should be based on merit. Learned Judges have gone on to observe that no weightage should be given to a candidate for rural service rendered by him so far as admissions to post-graduate courses are concerned.
In our opinion, this observation certainly does not constitute the ratio of the decision. The decision is in no way dependent upon these observations. Moreover, those observations are in connection (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (14 of 37) [SAW-1176/2022] with All India Selection and do not have equal force when applied to selection from a single State. These observations, however, suggest that the weightage to be given must be the bare minimum required to meet the situation. In these circumstances, we are of the view that the authorities might well consider giving weightage upto a maximum of 5 per cent of marks in favour of in-service candidates who have done rural service for five years or more. The actual percentage would certainly have to be left to the authorities. We also clarify that these suggestions do not in any way confer any legal right on in-service students who have done rural service nor do the suggestions have any application to the selection of the students upto the end of this year."
The observations made hereinabove by the Hon'ble Supreme Court clearly underline the object and purpose of providing for scheme of granting some weightage to in-service candidates, who have served in rural areas. Firstly, it has been taken into consideration that the facilities for keeping up with the latest medical literature might not be available to those in-service candidates, who are posted and working in rural areas and the nature of their work makes it difficult for them to acquire knowledge about very recent medical research which the candidates who have come after freshly passing their graduation examination might have. Secondly, it might act as an incentive to doctors who had done their graduation to do rural service for some time.
Note was also taken of the fact that the rural area had suffered grievously for non-availability of qualified doctors giving such incentive would be quite in order.
However, explaining the ratio of the decision in the case of Dr. Dinesh Kumar and Others Versus Motilal Nehru Medical College, Allahabad and Others (Supra), it was pertinently observed that weightage to be given must be the bare minimum requirement to meet the situation and, therefore, giving weightage (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (15 of 37) [SAW-1176/2022] upto certain limit in favour of in-service candidates, who have done rural service for particular period, would serve the purpose.
The object and purpose of granting incentive in the form of weightage marks to in-service candidates for having served in the remote/difficult/rural areas was again underlined and explained by the Hon'ble Supreme Court in a subsequent decision in the case of State of Uttar Pradesh and Others Versus Dinesh Singh Chauhan (Supra), it was observed thus :-
"29. For, Regulation 9 recognizes the principle of giving weightage to in-service candidates while determining their merit. In that sense, incentive marks given to in-service candidates is in recognition of their service reckoned in remote and difficult areas of the State, which marks are to be added to the marks obtained by them in NEET. Weightage or incentive marks specified in Regulation 9 are thus linked to the marks obtained by the in-service candidate in NEET and reckon the commensurate experience and services rendered by them in notified remote/difficult areas of the State. That is a legitimate and rational basis to encourage the Medical Graduates/Doctors to offer their services and expertise in remote or difficult areas of the State for some time. Indisputably, there is a wide gap between the demand for basic health care and commensurate medical facilities, because of the inertia amongst the young doctors to go to such areas. Thus, giving specified incentive marks (to eligible in-service candidates) is permissible differentiation whilst determining their merit. It is an objective method of determining their merit.
30. Coming to the next decision pressed into service in the case of State of M.P. V. Gopal D. Tirthani (2003) 7 SCC 83, it was a case of conducting separate entrance test for in-service candidates. That was frowned upon by this Court. The Court, however, suggested modality of preparing two separate merit list for the two categories and merit inter se of the successful candidates to be assessed separately in the two respective categories. The Court had examined the question as to whether weightage can be given to doctors for having rendered specified number of years of service in rural/tribal areas to determine the inter se merit. The Court analyzed four earlier decisions of this Court; to wit, Dinesh Kumar v. Motilal Nehru Medical (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (16 of 37) [SAW-1176/2022] College (1986) 3 SCC 727, Snehelata Patnaik v. State of Orissa (1992) 2 SCC 26, Narayan Sharma v. Pankaj Kr. Lenkar (2000) 1 SCC 44 and State of U.P. v. Pradip Tandon (1975) 1 SCC 267. The Court in para 33 observed thus:
"33..........The case at hand presents an entirely different scenario. Firstly, it is a case of post-graduation within the State and not an all-India quota. Secondly, it is not a case of reservation, but one of only assigning weightage for service rendered in rural/tribal areas. Thirdly, on the view of the law we have taken hereinabove, the assigning of weightage for service rendered in rural/tribal areas does not at all affect in any manner the candidates in open category. The weightage would have the effect of altering the order of merit only as amongst the candidates entering through the exclusive channel of admissions meant for in-service candidates within the overall service quota. The statistics set out in the earlier part of the judgment provide ample justification for such weightage being assigned. We find merit and much substance in the submission of the learned Advocate General for the State of Madhya Pradesh that Assistant Surgeons (i.e. medical graduates entering the State services) are not temperamentally inclined to go to and live in villages so as to make available their services to the rural population: they have a temptation for staying in cities on account of better conditions, better facilities and better quality of life available not only to them but also to their family members as also better educational facilities in elite schools which are to be found only in cities. In-service doctors being told in advance and knowing that by rendering service in rural/tribal areas they can capture better prospects of earning higher professional qualifications, and consequently eligibility for promotion, acts as a motivating factor and provides incentive to young in-service doctors to opt for service in rural/tribal areas. In the set-up of health services in the State of Madhya Pradesh and the geographical distribution of population, no fault can be found with the principle of assigning weightage to the service rendered in rural/tribal areas while finalizing the merit list of successful in-service candidates for admission to PG courses of studies. Had it been a reservation, considerations would have differed.(Downloaded on 11/11/2023 at 05:24:59 PM)
[2023/RJJP/011080] (17 of 37) [SAW-1176/2022] There is no specific challenge to the quantum of weightage and in the absence of any material being available on record we cannot find fault with the rule of weightage as framed. We hasten to add that while recasting and reframing the rules, the State Government shall take care to see that the weightage assigned is reasonable and is worked out on a rational basis."
32. The imperative of giving some incentive marks to doctors working in the State and more particularly serving in notified remote or difficult areas over a period of time need not be underscored. For, the concentration of doctors is in urban areas and the rural areas are neglected. Large number of posts in Public Health Care Units in the State are lying vacant and unfilled in spite of sincere effort of the State Government. This problem is faced by all States across India. This Court in Snehelata case (1992) 2 SCC 26 had left it to the Authorities to evolve norms regarding giving incentive marks to the in-service candidates. The Medical Council of India is an expert body. Its assessment about the method of determining merit of the competing candidates must be accepted as final [State of Kerala V. T.P. Roshana (1979) 1 SCC 572; also see Medical Council of India v. State Of Karnataka (1998) 6 SCC 131]. After due deliberations and keeping in mind the past experience, Medical Council of India has framed Regulations inter alia, providing for giving incentive marks to in-service candidates who have worked in notified remote and difficult areas in the State to determine their merit. The Regulation, as has been brought into force, after successive amendments, is an attempt to undo the mischief.
33. As aforesaid, the real effect of Regulation 9 is to assign specified marks commensurate with the length of service rendered by the candidate in notified remote and difficult areas in the State linked to the marks obtained in NEET. That is a procedure prescribed in the Regulation for determining merit of the candidates for admission to the Post Graduate "Degree" Courses for a single State. This serves a dual purpose. Firstly, the fresh qualified Doctors will be attracted to opt for rural service, as later they would stand a good chance to get admission to Post Graduate "Degree" Courses of their choice. Secondly, the Rural Health Care Units run by the Public Authority would be benefited by Doctors willing to work in notified rural or difficult areas in the State. In our view, a Regulation such as (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (18 of 37) [SAW-1176/2022] this subserves larger public interest. Our view is reinforced from the dictum in Snehelata Patnaik case (1992) 2 SCC 26.
35. As aforesaid, the 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 year, 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 not merely to provide institutional preference or for that matter to create separate channel for the in-service candidate, much less reservation. It is unfathomable as to how such a provision can be said to be unreasonable or irrational."
It was in the aforesaid background that, later on, when the Dental Council of India framed Regulations governing admission to (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (19 of 37) [SAW-1176/2022] Postgraduate Courses, the scheme of granting incentive to those in-service candidates, who have served in rural area was introduced. Amendments were made from time to time and the law which was in force on the day when the appellant/writ petitioner appeared in the NEET PG Examination for admission to MDS Courses provided for grant of certain percentage of weightage to in-service candidates, who had served in the rural area. Keeping in view the object of such subsidiary legislation in the form of Regulations framed by the Dental Council of India, no restricted meaning can be given to the expression "service in remote and/or difficult or rural areas". Therefore, it required purposive interpretation, keeping in view the object behind such Regulation and in-service candidates, who have actually served in the rural area, whether by way of temporary arrangement or otherwise are entitled to the benefit of the scheme, as noted by the Hon'ble Supreme Court in the case of Dr. Snehelata Patnaik and Others Versus State of Orissa and Others (Supra). Further whatever may be the mode and manner in which an in-service candidates is sent to work in the PHC/CHC situated in the rural area, the fact that the doctors actually served in the rural area is relevant for the purposes of entitlement to grant of weightage under the scheme of Regulation 7 (2) of the Regulations of 2017, referred to hereinabove. If a restricted meaning is given to the aforesaid provision that the benefit restricted is only when an order of posting issued by the State Government and not when a doctor is made to serve in the rural area under some kind of temporary arrangement, would essentially defeat the very object. As has been noted hereinabove, many doctors attempt to avoid posting in rural area which results in a situation that even if a doctor is posted in the rural area, for one reason or the other, he is actually (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (20 of 37) [SAW-1176/2022] not serving, therefore, it becomes necessary in the exigencies of service to send some other doctors to serve in the rural area by way of attachment or temporary arrangement. The object is to provide services in the rural areas to the rural masses. If that object is fulfilled by posting, in whatever nature it may be called, a doctor in the rural area and if that doctor faithfully serves the rural masses by remaining posted for a substantial period, as against interim arrangements for few days, it defeats all logic and reasoning as to why such in-service candidate should be deprived of the benefit of weightage marks for having worked in the rural area. Thus, if restricted meaning is given to rural service, it would defeat the very object and purpose for grant of weightage. On the other hand, if the interpretation which advances the object of the subsidiary legislation, has to be preferred as against narrow and technical meaning.
From facts and circumstances of the present case, it is very clear that there was a vacancy of Dental Surgeon at CHC, Shahjahanpur. The appellant/writ petitioner was surplus employee posted at CHC, Mundawar which is an urban area. In order to ensure that medical services are properly extended to the rural masses, the CMHO, Alwar, on instructions of higher authorities issued order on 02.01.2019 posting the petitioner at CHC, Shahjahanpur. It is not a case where the appellant/writ petitioner remained posted there for only few days. The appellant/writ petitioner continued to serve rural masses for more than one year continuously upto 11.02.2020. There is nothing on record to show that the appellant/writ petitioner was not willing to serve in the rural area or that she made representation that she should be sent back to the urban area posting at CHC, Mundawar or that she avoided to work. The appellant/writ petitioner (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (21 of 37) [SAW-1176/2022] faithfully served in the rural area where the State Government itself did not post anybody. It is rather unfortunate that State itself did not take care to ensure posting of a doctor at CHC, Shahjahanpur. Therefore, the administrative exigencies for posting the appellant/writ petitioner at CHC, Shahjahanpur are writ large.
It is quite unfortunate that respondents sought to deny the benefit of weightage marks to the appellant/writ petitioner in respect of the period during which she, as an obedient Government Servant, faithfully served the rural masses, on technical grounds. Equally unfortunate it is that when the appellant/writ petitioner sought to take the benefit of weightage marks on the basis of her posting at CHC, Shahjahanpur, respondents left no stone unturned to disown their own orders. Order dated 02.01.2019 passed by the CMHO, Alwar clearly states that the posting of the appellant/writ petitioner is under instructions, which would clearly mean instructions of the higher authorities. Copy of the order was sent to the Director, Health Services, Rajasthan as also Additional Director, Health Services, Rajasthan. None of these authorities ever objected the contents of the said letter or ever wrote any letter to the CMHO, Alwar that no instruction was given for making necessary arrangements for posting of a Dental Surgeon at CHC, Shahjahanpur, a rural area. It is more than clear that though, the State did not post any Dental Surgeon at CHC, Shahjahanpur, there was a necessity of manning CHC, Shahjahanpur which led to the posting of appellant/writ petitioner, may be on a local basis, by order of the CMHO, Alwar. Further the order usages the word "dk;kZ O;oLFkkFkZ" (work arrangement) which would be more indicative of the need of exigencies of service. It is not the case of the respondents much less any whisper in the return that there was no need of manning CHC, Shahjahanpur. Obviously, therefore, (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (22 of 37) [SAW-1176/2022] by all means, the posting of the appellant/writ petitioner was in exigencies of service aimed at providing health services to rural masses.
The technical objections taken by the respondents that the appellant/writ petitioner work at CHC, Shahjahanpur, a rural area without there being an order of substantive posting issued by the State Government or by the Director, Health Services, Rajasthan, lies ill in the mouth of the State. The said order, as is inferred from the circumstances stated above, was issued to provide a doctor at CHC, Shahjahanpur under the instructions of the higher authorities. Therefore, whether substantive posting order was issued or not issued, pales into significance insofar as application of Regulation 7 (2) of the Regulations of 2017, for the purposes of grant of weightage, is concerned.
The other occasion to post the appellant/writ petitioner to work in the rural areas arose during COVID-19 pandemic situation. A letter was issued on 27.03.2020 by the State Government directing the concerned CMHO to prevent spread of COVID-19 virus and utilise their services. The aforesaid letter reads as under:-
jktLFkku ljdkj fpfdRlk ,oa LokLF; ¼xzqi&2½ foHkkx dzekad%i-1¼1½fpLok@xzqi&2@2020 t;iqj] fnukad % 27-03-2020 vkns'k fo'o LokLF; laxBu rFkk la;qDr jk"Vª }kjk dksjksuk ok;jl ¼ COVID-19½ ladze.k dks Pandemic ?kksf"kr djus rFkk bl lanHkZ esa mRiUu fLFkfr ds fuiVus ds ifjizs{; esa ftyksa esa inLFkkfir nUr fpfdRldksa e; bZ- ,l- vkbZ- esa inLFkkfir nUr fpfdRldksa dh lsok,sa lacaf/kr ftys ds eq[; fpfdRlk ,oa LokLF; vf/kdkjh dks rqjar izHkko ls lkSaih tkrh gSA lacaf/kr eq[; fpfdRlk ,oa LokLF; vf/kdkjh }kjk muds ftys esa inLFkkfir nUr fpfdRldksa dks dksjksuk ok;jl ¼COVID-19½ ds ladze.k ,oa jksdFkke ds laca/k esa (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (23 of 37) [SAW-1176/2022] vko';d izf'k{k.k nsrs gq, budh lsok,a dksjksuk ok;jl ¼ COVID-19½ ds ladze.k ,oa jksdFkke gsrq mi;ksx esa ykosaA jkT;iky dh vkKk ls] ¼lat; dqekj½ 'kklu mi lfpo Pursuant to the aforesaid direction, an order was issued by the Block Chief Medical Officer, Mundawar, Alwar on 23.05.2021 posting the appellant/writ petitioner to PHC, Ajaraka with a direction to ensure proper treatment to take necessary measures towards prevention, treatment of COVID-19 virus and other seasonal diseases. The aforesaid order is reproduced hereinbelow:-
jktLFkku ljdkj dk;kZy; [k.M eq[; fpfdRlk vf/kdkjh] eq.Mkoj ¼vyoj½ dzekad [k.M @dksfoM@2021@533 fnukad 23-05-2021 dk;kZy; vkns'k Jheku eq[; fpfdRlk ,oa LokLF; vf/kdkjh vyoj ds funsZ'kkuqlkj [k.M eq.Mkoj esa fjDr izkFkfed LokLF; dsUnz vtjdk ij MkW- Lusgk frokMh fpfdRlk vf/kdkjh ¼nUr½ lkeqnkf;d LokLF; dsUnz eq.Mkoj dks rqjUr izHkko ls vfxze vkns'kksa rd dk;ZO;oLFkkFkZ yxk;k tkdj funsZf'kr fd;k tkrk gS fd vki viuh mifLFkfr izk0Lok0 dsUnz vtjdk ij izLrqr djsA lkFk gh lSDVj vtjdk ds vUrxZr vkus okys {ks=ksa esa dksfoM ladze.k o vU; ekSleh fcekfj;ksa dh jksdFkke] cpko o mipkj vkfn dk izHkkoh rjhds ls fu;a=.k dk;Z djuk lqfuf'pr djsaA [k.M eq[; fpfdRlk vf/kdkjh eq.Mkoj ¼vyoj½ fnukad 23-5-2021 A copy of the said order was sent to the CMHO, Alwar. It is quite clear that this posting of the appellant/writ petitioner at PHC, Ajaraka, which is another rural area, was in acute administrative exigencies. The appellant/writ petitioner again joined to serve rural masses in difficult times by working at PHC, Ajaraka. There is nothing on record much less any stand taken by the respondents (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (24 of 37) [SAW-1176/2022] that the appellant/writ petitioner either did not go there, or avoided to perform her official duty in difficult times. The order was passed by the Block Chief Medical Officer, Mundawar, Alwar on the instructions given by the CMHO, Alwar, as is clear from the order itself. The concerned CMHO was directed vide order dated 27.03.2020, by the Government to make necessary arrangements by posting medical officers under his jurisdiction towards ensuring prevention and treatment of COVID-19 virus and seasonal diseases.
It is not the case of the respondents that the posting of the appellant/writ petitioner at PHC, Ajaraka was not at all warranted or without the authority and instructions of the concerned CMHO. The appellant/writ petitioner again served in rural area for another spell from 24.05.2021 till 10.05.2022, i.e., almost one year. These facts are not disputed.
The aforesaid facts regarding posting and working of the appellant/writ petitioner in the rural area, firstly at CHC, Shahjahanpur and, thereafter, at PHC, Ajaraka are factually not in dispute except that according to the respondents, the appellant/writ petitioner worked at CHC, Shahjahanpur from 02.01.2019 to 13.02.2020, i.e., 408 days and, thereafter, at PHC, Ajaraka from 24.05.2021 to 30.04.2022, i.e., 342 days, but the respondents sought to deny the benefit on various technical grounds, one of them being that such posting was under working arrangement. We fail to understand how use of such words "working arrangement", would deny the fact that the appellant/writ petitioner actually served rural masses while remaining posted in the rural areas.
Yet another ground taken by the respondents to deny the benefit of weightage even though appellant/writ petitioner actually served in the rural area, is that she was not granted rural allowance. (Downloaded on 11/11/2023 at 05:24:59 PM)
[2023/RJJP/011080] (25 of 37) [SAW-1176/2022]
The respondents have placed on record various
communications wherein authorities have sought to justify why the appellant/writ petitioner could not be granted rural allowance. Neither along with the reply/various additional affidavits filed in the writ proceedings, nor in any of the documents, which have been placed before us, any specific provision of law/statutory rule has been brought to our notice that a doctor, who has been posted in rural area on work arrangement basis having his original posting at some other place, even if having worked and served in rural area, could not be entitled to rural allowance. We did not enter into that aspect because in the present case, the issue is whether under the Regulations framed by the Dental Council of India, the appellant/writ petitioner was entitled to grant of weightage for having rendered services in rural areas and whether non payment of rural allowance or service in rural area under work arrangement or towards performance of duty of service in rural area during COVID-19 pandemic, would dis-entitle the appellant/writ petitioner to weightage, under the statutory scheme of Regulation 7 (2) of the Regulations of 2017.
We again revert back to the provisions contained in Regulation 7 (2) of the Regulations of 2017 which provide for grant of weightage for service in remote/difficult/rural area. On its plain reading, there is no such condition prescribed in the Regulation that in order to earn weightage of marks for having served in the rural areas, service under a working arrangement or under exigencies of service would not be counted. Further, there is nothing in the aforesaid Regulation that non payment of rural allowance would ipso-facto dis-entitle the Dental Surgeon/Dentist/Doctor to benefit of weightage marks. Thus, two conditions have been pointed by the (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (26 of 37) [SAW-1176/2022] respondent-State without any authority and could not be allowed to be read as conditions precedent to grant of weightage marks once it is not disputed that the Dental Surgeon/Dentist/Doctor has actually served in the rural area. Legally speaking, it was beyond the jurisdiction of the State to amend or incorporate pre conditions in the Regulation framed by the Dental Council of India by administrative orders. Present is not even a case where any executive instructions have been issued under Article 162 of the Constitution of India much less any law made by the State legislation or any rule framed by the Governor in exercise of powers conferred under proviso to Article 309 of the Constitution of India. The respondents-authorities, on their own, are inserting conditions for grant of weightage, which is clearly impermissible in law.
In the case of State of Uttar Pradesh and Others Versus Dinesh Singh Chauhan (Supra), the three Judge Bench of the Hon'ble Supreme Court in its authoritative pronouncement, while dealing with State Government orders imposing conditions of working, on the ground it being ultra vires under Articles 14, 15 & 16 of the Constitution of India and in contravention of the Postgraduate Medical Education Regulations, 2000 held as under :-
"24. By now, it is well established that Regulation 9 is a self- contained Code regarding the procedure to be followed for admissions to medical courses. It is also well established that the State has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to Post Graduate Medical Courses enunciated by the Central Legislation and Regulations framed thereunder, being a subject falling within Schedule VII List I Entry 66 of the Constitution (See: Preeti Srivastava v. State of M.P. (1999) 7 SCC 120. The procedure for selection of candidates for the Post Graduate Degree Courses is (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (27 of 37) [SAW-1176/2022] one such area on which the Central Legislation and Regulations must prevail.
27..........The admission process in the present case is governed by the Regulations which have come into force from the Academic Year 2013-14. This Regulation is a self-contained code. There is nothing in this Regulation to even remotely indicate that a separate channel for admission to in-service candidates must be provided, at least in respect of Post Graduate "Degree" Courses. In contradistinction, however, 50% seats are earmarked for the Post Graduate "Diploma" Courses for in-service candidates, as is discernible from Clause (VII). If the Regulation intended a similar separate channel for in-service candidates even in respect of Post Graduate "Degree"
Courses, that position would have been made clear in Regulation 9 itself. In absence thereof, it must be presumed that a separate channel for in-service candidates is not permissible for admission to Post Graduate "Degree" Courses. Thus, the State Government, in law, had no authority to issue a Government Order such as dated 28-02-2014, to provide to the contrary. Hence, the High Court was fully justified in setting aside the said Government Order being contrary to the mandate of Regulation 9 of the Regulations of 2000, as applicable from Academic Year 2013-14."
In a subsequent decision in the case of Dr. Amit Bagra and Others Versus State of Rajasthan and Others (Supra), the notification issued by the State Government restricting the benefit of weightage marks only upto 10%, as against pari materia provision with regard to grant of weightage marks to in-service candidates upto 30% in the matter of admission to Postgraduate Courses in medical colleges as provided under Regulation 9(iv) of the Medical Council of India Regulations, 2000 (as amended on 15.12.2012), was held to be not in conformity with the scheme provided under the Regulations of 2000. It was held as under:-
"That apart, we find that the writ petitioners before the Ld. Single Judge are not in service candidates and indisputably they are not eligible for any weightage in the marks obtained in the form of incentive, which is available for in-service Doctors who, as alleged, (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (28 of 37) [SAW-1176/2022] have served in remote or difficult areas and who amongst in-service Doctors be entitled for the incentive marks for the service rendered in remote/difficult areas is their inter-se & at least may not be open for challenge from such candidates who are not in-service Doctors and this litigation has come to this court at the behest of the non service Doctors at the fag end just to adopt indirect method in defeating the mandate of the proviso to Reg.9 ((IV) of the Regulations, 2000 & to put a rider before the State Government in extending benefit of marks to the eligible in-service Doctors/candidates who are serving in hilly/desert/tribal or rural areas which has been identified by the State Government as 'difficult areas' and 'remote areas' fulfilling the relevant norms under the Notification dt.23.12.2011 for the purpose of availing incentive for the services rendered by them as contemplated under the proviso to Reg.9(IV) of the Regulations, 2000 and to further reiterate the State Government could not be held justified in restricting grant of weightage of marks in the form of incentive to the limited extent of 10% irrespective of length of service rendered, when the proviso to Clause (IV) of Reg.9 envisages at the rate of 10% of marks for each year of service upto 30% of the marks secured in NEET Examination and such decision of the Government is not in conformity with the scheme to the proviso to Reg.9(IV) of the Regulations, 2000."
The legal position, therefore, is clear that the State Government has no authority to impose conditions/pre conditions, which are not expressly stated in the Regulation 7 (2) of the Regulations, 2017 in the matter of grant of weightage marks much less the grounds on which benefit of weightage marks has been denied to the appellant/writ petitioner on the basis of administrative decisions. Once it is found that in-service candidate has worked in remote/difficult/rural areas, the law entitles the in-service candidate to award of weightage marks. What is of seminal importance is that in-service candidate, claiming benefit of weightage marks, must have actually served in rural area. Once this condition is fulfilled, the (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (29 of 37) [SAW-1176/2022] in-service candidate becomes entitle to award of weightage marks in accordance with the scheme of the regulations.
It is unfortunate that when the appellant/writ-petitioner started claiming benefit of weightage marks on the basis that she has actually worked in the rural area, in order to deny her rightful claim which accrued per force the provision contained in Regulation 7(2) of the Regulations of 2017, the respondents in order to somehow justify their action of denial and to create a ground for defence in the writ petition, started issuing notice to the concerned CMHO and other officers as to why the appellant/writ petitioner was posted to work in rural area without the direction of the higher authorities. Such letters & charge-sheets have been placed on record by the respondents in the pending writ petition before the order was passed by the learned Single Judge, only to justify their action. For the purposes of examining the entitlement of the appellant/writ petitioner as to whether she was entitled to benefit of weightage marks, we have dealt in elaborate details hereinabove that the order of posting of the appellant/writ petitioner at CHC, Shahjahanpur was passed by the CMHO only under the directions with copy endorsed to the Director, Health Services, Rajasthna & Additional Director, Health Services, Rajasthan, who never raised any objection. It was only when the appellant/writ petitioner started claiming benefit of weightage marks for which a certificate was also issued in her favour, on the basis of complaint filed by respondent No.6, the authority started disputing entitlement of the appellant/writ petitioner on an afterthought ground of hyper technical nature which otherwise is factually not borne out. No affidavit of the then Director and Additional Director, Health Services, Rajasthan has been filed by the respondents, whereas, the order was passed by the CMHO, (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (30 of 37) [SAW-1176/2022] Alwar way back on 02.01.2019 and the copy having been endorsed to Director, Health Services, Rajasthan and Additional Director, Health Services, Rajasthan, it is presumed to be in their notice and knowledge ever since then. They having not raised any objection to the same, nor passed any order, the contents of the order dated 02.01.2019 passed by the CMHO, Alwar that he had passed the order of the posting of the appellant/writ petitioner at CHC, Shahjahanpur on the instructions of higher authorities are presumed to be correct.
In support of his submissions, learned counsel for the State relied upon various decisions.
Reliance placed on the decision of the Hon'ble Supreme Court in the case of Dr. Amit Bagra and Others Versus State of Rajasthan and Others (Supra), is misplaced in law. As has been held hereinabove, Hon'ble Supreme Court clearly held that it was beyond the authority of the State Government to restrict grant of weightage marks contrary to the scheme of the Medical Council of India Regulations. True it is that insofar as identification of remote and/or difficult or rural areas is concerned, under the regulations, this power rests with the State Government. Therefore, the aforesaid decision does not advance the cause of the respondents, but on the other hand, strengthens the case of the appellant/writ petitioner. For the reasons stated above and in view of the decision of the Hon'ble Supreme Court in the case of Dr. Amit Bagra and Others Versus State of Rajasthan and Others (Supra), reliance placed on the decisions of the Division Bench of this Court in the cases of State of Rajasthan Versus Dr. Ajeet Bagra & Others (Supra) and Dr. Nirmala Royal and Others Versus Dr. (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (31 of 37) [SAW-1176/2022] Kamlendra Singh Chaudhary and Others (Supra) is also of no avail to the respondents.
Reliance placed on the judgment of the Division Bench of this Court in the case of Dr. Neha Choudhary Versus State of Rajasthan & Others (Supra) is also misconceived both on facts as well as on law. On facts that was a case where the dispute was relating to the cutoff date for the purposes of reckoning the period of rural services to claim weightage of marks. In the aforesaid decision, it was observed that no candidate has vested right to claim such incentive, that too de-hors the said policy. This was observed in the context of conflicting cutoff date. Present is not a case where the appellant/writ petitioner is claiming weightage de-hors any law. The action of the State and its officers has to be in accord with the regulations framed by the Dental Council of India. Present is a case where there are no specific rules and regulations framed by the State Government, but respondents on their own administrative considerations have evolved certain pre conditions for grant of weightage marks which are otherwise not provided in the Regulations of 2017, to deny the benefit of weightage marks.
Similar issue fell for consideration of learned Single Judge in the case of Dr. Rakesh Kumar Saini Versus State of Rajasthan & Others (Supra). The grievance of the petitioners therein was that they had also rendered services by virtue of orders issued by the State Government, posting them during COVID-19 period, in urban area namely; Rajasthan University of Health Sciences (RUHS), Medical Colleges and designated hospitals though they were otherwise posted in remote/difficult/rural areas, prior to their posting to meet out COVID-19 situation in urban area. In that (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (32 of 37) [SAW-1176/2022] context, the claim of the petitioners was examined and the writ petition was dismissed.
In view of the above thoughtful consideration bestowed upon rival submissions made by the learned counsel for the parties, provisions contained in the regulations and various decisions of the Hon'ble Supreme Court, we are of the considered opinion that denial of benefit of weightage marks to the appellant/writ petitioner was illegal and unsustainable in law and the appellant/writ petitioner was entitled to grant of weightage marks proportionate to the period of services rendered by her in the rural area by remaining posted firstly at CHC, Shahjahanpur and, thereafter, at PHC, Ajaraka.
It is not the case of the respondents that even if those marks were awarded to the appellant/writ petitioner, she otherwise could not secure admission. On the contrary from the averments made in the appeal and the material placed on record, it is clear that had the weightage marks been awarded to the appellant/writ petitioner, she would have definitely secured a seat in two years PG Course of MDS.
On the aspect as to what relief could be granted, learned counsel for the respondents submitted that since the academic session in which the appellant/writ petitioner could be granted admission is almost over, the appellant/writ petitioner is not entitled to any relief. Opposing appellant's/writ petitioner's prayer for grant of admission in the next academic session, learned counsel for the respondents would submit that such benefit could not be extended to the appellant/writ petitioner. For this purpose, learned counsel for the respondents has placed reliance on the decision of the Hon'ble Supreme Court in the case of Maharishi Markandeshwar University and Another Versus Akriti Sharma and Others (Supra).
(Downloaded on 11/11/2023 at 05:24:59 PM)
[2023/RJJP/011080] (33 of 37) [SAW-1176/2022] On the other hand, learned counsel for the appellant/writ petitioner has relied upon the decision of the Hon'ble Supreme Court wherein, this issue directly fell for consideration on a reference made in view of conflicting opinion of Co-ordinate Benches. In the case of S. Krishna Sradha Versus State of Andhra Pradesh and Others (Supra), the issue falling for consideration of the Larger Bench as noticed in the opening paragraph of the aforesaid judgment is as below:-
"The issue arises for consideration is whether a student, a meritorious candidate, for no fault of his/her and who has pursued his/her legal right expeditiously without delay, can be denied admission as a relief, because the cut-off date of 30th September has passed. In such a situation the relief which can be given by the Court is to grant appropriate compensation only?
2. Having noticed the conflict between the pronouncement of this Court in Asha v. Pt. B.D. Sharma University of Health Sciences (2012) 7 Supreme Court Cases 389 and State (UT of Chandigarh) v.
Jasmine Kaur (2014) 10 Supreme Court Cases 521, the aforesaid issue is referred to a larger Bench.
The conclusions drawn while answering the reference are as below:-
13. In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:
13.1. That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the court concerned to dispose of the proceedings by giving priority and at the earliest.
13.2. Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (34 of 37) [SAW-1176/2022] his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed-30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time i.e. within one month from 30th September i.e. cut-off date and under no circumstances, the Court shall order any admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled.
13.3. In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.(Downloaded on 11/11/2023 at 05:24:59 PM)
[2023/RJJP/011080] (35 of 37) [SAW-1176/2022] 13.4.Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.
13.5. It is clarified that the aforesaid directions pertain to admission in MBBS Course only and we have not dealt with Post Graduate Medical Course.
14. In view of the above, the decision of this Court in Jasmine Kaur (Supra) or any other decisions contrary to the above stand overruled.
The decision of this Court in the case of Asha (Supra) is hereby affirmed to the aforesaid extent. The reference is answered accordingly."
Though paragraph 13.5, clarifies that the direction pertained to admission in M.B.B.S. Course only and the Hon'ble Supreme Court has not dealt with the Postgraduate medical course, the principles which have been laid down in the aforesaid Larger Bench decision in the case of S. Krishna Sradha Versus State of Andhra Pradesh and Others (Supra) that the Constitutional Courts have to do complete justice by issuing extraordinary direction of exceptional nature in appropriate cases, we are inclined to grant similar benefit as has been ordered by the Hon'ble Supreme Court in the aforesaid case of S. Krishna Sradha Versus State of Andhra Pradesh and Others (Supra), relying upon a subsequent judgment of the Hon'ble Supreme Court in the case of National Medical Commission Versus Mothukuru Sriyah Koumudi & Others (Supra), which was a case relating to denial of admission to Postgraduate medical specialty course of MS (General Surgery). Their Lordships in the Supreme Court, relying upon the Larger Bench (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (36 of 37) [SAW-1176/2022] decision in the case of S. Krishna Sradha Versus State of Andhra Pradesh and Others (Supra) held as below:-
"11. As the dispute in S. Krishna Sradha case (supra) pertained to admission to the undergraduate MBBS Course, this Court held that they have not dealt with the Post Graduate Medical Courses. Mr. Parameshwar argued that there is no reason why the logic behind the judgment in S. Krishna Sradha case (supra) should not be made applicable to Post Graduate Courses. We find force in the said argument of Mr. Parameshwar. This Court was only dealing with the admission to the MBBS Course for which reason directions given in the said judgment were restricted to the MBBS Course. Direction issued in S. Krishna Sradha case (supra) can be made applicable to admission to Post Graduate Courses as well"
Therefore, having noted that the last date for admission in the current academic year was over, though prayer to grant admission in the current academic year was not granted, however, the successful writ petitioner therein was entitled for admission to the MS (General Surgery) Course in the next academic year with the direction that the said writ petitioner be given admission in a seat.
On facts of the present case and in view of our findings as above, it is clear that the appellant/writ petitioner was illegally and irrationally denied admission in PG Courses for no fault of her and the appellant/writ petitioner approached the Court in time. In another words, appellant/writ petitioner approached the Court without delay and with all promptness at her command. We find that there is no fault attributable to the appellant/writ petitioner. Further in view of our conclusions, a case of apparent breach of regulation 7(2) of the Regulations, 2017 is made out and, therefore, in order to do complete justice, a case of exceptional circumstances is made out to issue direction to the respondents to accord admission to the appellant/writ petitioner in the next academic session of MDS Course (Downloaded on 11/11/2023 at 05:24:59 PM) [2023/RJJP/011080] (37 of 37) [SAW-1176/2022] by allotting one of the seat for which the respondents have undertaken the process of admission pursuant to NEET, PG Examination of this year. However, in the circumstances, we are not inclined to direct cancellation of admission of any candidate to MDS Course. Further more in the circumstances, we are also not inclined to award any compensation.
The appeal is, accordingly, partly allowed, in the manner and to the extent, indicated above.
(ANIL KUMAR UPMAN),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ SANJAY KUMAWAT-43 (Downloaded on 11/11/2023 at 05:24:59 PM) Powered by TCPDF (www.tcpdf.org)