Rajasthan High Court - Jaipur
Dr Guman Singh Yadav And Ors vs State (Medicaland And Health)Ors on 18 July, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.10191/2013 Dr. Guman Singh Yadav & Ors. Versus State of Rajasthan & Ors. DATE OF ORDER : 18/07/2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr. Ashok Gaur, Sr. Adv. with Mr. Ajatshatru Mina, for petitioners Mr. M.A. Khan ] Mrs. Shruti Dixit, Addl. G.C. ] for respondents
Mr. Angad Mirdha ] Dr. Vibhuti Bhushan Sharma, Addl.G.C. ] ***
The controversy involved in this writ petition pertains to admission in Post Graduate Medical Courses.
Learned counsel for petitioners submits that Medical Council of India made Post Graduate Medical Education Regulations, 2000 (hereinafter referred as Regulations of 2000). The Council then amended the aforesaid Regulations by Post Graduate Medical Education Regulations of 2010 by invoking its powers under Section 33 of Indian Medical Council Act. It was to bring a Single Eligibility-cum-Entrance Examination namely; National Eligibility-cum-Entrance Test for admission to Post Graduate Medical Courses. An amendment was further made vide Gazette Notification dated 27.02.2012. Therein, certain sub-clauses were added. The controversy in the present matter is in reference to non-compliance of the Regulations as amended.
It is stated that as per Notification of the year 2012, sub-clause (vii) of Clause 9 was added to provide 50% seats in Post Graduate Diploma Courses for Medical Officers in Government service, who have served atleast three years in remote and/or difficult areas and to further serve two more years in such areas after acquiring PG Diploma Course. A proviso was further added after sub-clause (iv) to Clause 9. It is to provide weightage of marks as incentive for those candidates who are in service of the government/public authority. For them, 10% of marks for each year may be provided who are serving in remote and/or difficult areas with the maximum of 30% of marks. The aforesaid amendments have not been given effect by respondents while making admission to the PG Diploma Course. The respondents have allowed quota of 50% for in-service category even for those who have not worked for three years in remote and/or difficult areas. The candidates having worked for two years in rural areas of desert, hilly/schedule area of the State are also allowed to fall in 50% marks quota meant for in-service candidate. It is as per Ordinance 278E of Rajasthan University Ordinance as adopted by Rajasthan University of Health Sciences. The respondents thus ignored rather violated Regulations made by Medial Council of India. The admission in PG Courses has to be strictly in accordance to Regulations made by Medical Council of India. If any repugnancy exists in State and Central law then what will prevail is the Central Law. It is moreso when field of higher education is occupied and is to be legislated by Central Government. In view of the above, respondents be directed to make admission in PG Course in compliance to Regulations as amended and referred to above.
Learned counsel for respondents, on the other hand, submits that issue regarding admission in MBBS, BDS and PG Course was pending before Hon'ble Apex Court where initially interim order was passed, though it was modified on 13.12.2012 permitting declaration of result. The University Ordinance provides quota for in-service candidates be filled from amongst those who have completed atleast three years of government service in rural areas of the State of Rajasthan or two years of continuous service in rural areas of desert, hilly/schedule area of the State. The rural areas would be where rural allowances are admissible to the Doctors.
So far as weightage of 10% of marks for each year of service in remote and/or difficult areas is concerned, it is directory in nature in view of use of word may. The proviso to sub-clause (iv) of Clause 9 was brought with a view to allow the Government/competent authority to provide incentive of 10% marks with the ceiling of 30% of marks towards service in the Government/public authority in remote and/or difficult areas. The aforesaid provision left it open for the Government/competent authority to apply the said rule in appropriate case and for that purpose, define difficult/remote area. It is for the State where Doctors are not serving in remote and/or difficult areas and service is required to be promoted in those areas. The provision aforesaid was left on the discretion of the respondents. In view of the above, there is no illegality in preparation of list of eligible in-service candidates so as to make admission in PG Course.
It is also submitted that even if sub-clause (vii) of Clause 9 is applicable to the admission for in-service quota then also it applies only for Post Graduate Diploma Courses and not for Post Graduate Degree Courses. Thus even if any direction is to be given in consonance to Clause 9(vii) of the Regulations, the aforesaid may be clarified.
I have considered the rival submissions made by the parties and perused the record.
The controversy in the present matter is in reference to the amendment of year 2012, made in the Regulations, pertaining to Post Graduate Medical Education. Pursuant to the Indian Medical Council Act, 1933, Medical Council of India was established in the year 1934. It made Regulations from time to time and so far as Post Graduate Medical Education is concerned, the Regulation was brought in the year 2000 and amendment in the said Regulation was made in the year 2010 to provide single eligibility-cum-entrance examination known as National Eligibility-cum-Entrance Test. It is for the admission to the Post Graduate Medical Courses. The amendment aforesaid has been recently set aside by Hon'ble Apex Court vide judgment dated 18th of July, 2013 but so far as present admissions are concerned, it is saved pursuant to the Regulations of year 2010. The Medical Council of India further made amendment in the Regulations vide Gazette Notification dated 27.02.2012 by invoking powers under Section 33 of the Indian Medical Council Act, 1956. The grievance of the petitioners is in reference to proviso added to sub-clause (iv) of Clause 9 of the Regulations so as sub-clause (vii) to Clause 9. Thus, it would be gainful to quote both the provisions for ready reference:
5. Clause 9 under the heading 'SELECTION OF POSTGRADUATE STUDENTS', as amended vide notification No.MCI.18(1)/2010-Med/49070 dated 21st December 2010, following shall be added after sub-clause IV which is as under:-
Provided that in determining the merit of the candidates who are in service of Government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent authority from time to time.
6. Clause 9 under the heading 'SELECTION OF POSTGRADUATE STUDENTS', as amended vide notification No.MCI.18(1)/2010-Med/49070 dated 21st December 2010, following shall be added after sub-clause VII which is as under:-
VII. 50% of the seats in Post Graduate Diploma Course shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government/Competent authority from time to time.
Perusal of proviso to sub-clause (iv) shows that for determining merits of the candidates who are in service of the Government/public authority, weightage of marks may be given by the Government/public authority in the manner indicated therein. It would be for those who are serving in remote and/or difficult areas.
The question for my consideration is as to whether proviso aforesaid is mandatory in nature or directory. A careful reading of the provision shows use of word 'may' for award of weightage of marks by the Government/competent authority. The use of word 'may' makes provision directory in nature and not mandatory. It is for the reason that while adding sub-clause (vii) to Clause 9, the word 'shall' has been used to make it mandatory for providing 50% quota to a particular category. The deliberate deviation from word 'shall' and use of word may makes it clear that it has been used to make the provision directory in nature.
Sub-clause (vii) to Clause 9 provides 50% quota for those who are serving as Medical Officer in Government and have atleast worked for three years in remote and/or difficult areas and would serve for two years in such areas after P.G. Diploma Courses. The Medical Council of India provided separate quota for those working in remote and/or difficult areas and the provision aforesaid is mandatory. Those Medical Officers serving in the Government are called in-service candidates and can be given further benefit of weightage of marks to the extent of 10% for each year's working in remote and/or difficult areas with the ceiling of 30% at the discretion of the Government/competent authority. It is for those States, which want to promote more service in remote and/or difficult areas thus at the discretion of Government/competent authority they can further provide incentive of 10% marks of each year working with the ceiling of 30% marks to those who are working in remote and/or difficult areas. The petitioners have taken aforesaid to be mandatory in ignorance of the use of word may. It has been submitted by learned counsel for petitioners that weightage of marks has been allowed by the respondents and therein a candidate worked only for two years in remote and/or difficult areas has been given weightage of 30% marks. The aforesaid has been denied by the respondents however if Government/competent authority has taken a decision to allow weightage of marks as incentive then it has to be strictly in consonance to proviso of sub-clause (iv) of Clause 9. To clarify the aforesaid, a separate direction would be given in the concluding paras. The aforesaid would however be if a decision has been taken by the Government/competent authority to allow weightage of marks of each year's working with the ceiling of 30% marks to those who are working in remote and/or difficult areas.
So far as other issue pertaining to 50% quota as per sub-clause (vii) of Clause 9 added by amendment of 2012 is concerned, the provision aforesaid is to provide 50% quota to those who are serving as Medical Officer in the Government service and worked for atleast three years in remote and/or difficult areas. The sub-clause (vii) is however applicable only for Post Graduate Diploma Courses as it does not include Post Graduate Degree Courses as is coming out from opening line of amended sub-clause (vii). In the light of the aforesaid, it is necessary to clarify that sub-clause (vii) of Clause 9 is applicable only for Post Graduate Diploma Course and not for Post Graduate Degree course.
For Post Graduate Diploma Course, the respondents will keep 50% quota reserved for Medical Officer in the Government service, who have served atleast for three years in remote and/or difficult areas and they further undertake to serve two more years in remote and/or difficult areas. After completion of PG in Diploma Course. In view of the aforesaid provision, respondents are not justified to provide 50% quota for PG Diploma Course to those who have not worked for three years in remote and/or difficult areas. They are accordingly directed not to allow 50% quota for Post Graduate Diploma Course to those who have only served for two years in rural areas of desert, hilly/schedule area of the State.
It is however necessary to clarify that so far as PG Degree Course is concerned, sub-clause (vii) of Clause 9 is not applicable. In the light of the aforesaid, 50% quota for Medical Officer serving in Government can be provided in accordance to the University Ordinance. It is in view of the fact that as and when there is conflict between Regulations and University Ordinance, what will prevail is Medical Council of India Regulations however if there is no conflict between two legislations, both can be given effect. It is in view of concurrent list of Constitution of India. For PG Degree Course, 50% quota would be earmarked for those who have served for three years in rural areas of State of Rajasthan or two years continuous service in rural areas of desert, hilly/schedule area of the State. For PG Degree Course, quota for in-service candidates would accordingly be governed by University Ordinance. The PG Diploma Course would however be governed by amended Regulations of Medical Council of India as University Ordinance for the aforesaid comes in conflict thus cannot be applied. It is even by applying rule of repugnancy in regard to two legislations.
In view of the discussion aforesaid, this writ petition so as stay application are disposed of with the following directions:
50% quota for in-service candidates:
(i) So far as amended Regulation 9(vii) is concerned, 50% seats in Post Graduate Diploma Course shall be reserved only for a Medical Officer in the Government service, who has served at least for 3 years in remote and/or difficult areas and after acquiring Post Graduate Diploma, Medical Officers shall further serve for two years in remote and/or difficult areas as defined by the State Government/competent authority. The Medical Officers in Government service completed only two years service in remote or difficult areas would not be entitled to the quota aforesaid. It is further clarified that the direction above would apply only for Post Graduate Diploma Course and not for Post Graduate Degree Course.
(ii) So far as Post Graduate Degree Course is concerned, 50% in service quota can be filled in accordance with University Ordinance, which provides quota for those who have completed three years service in rural areas or two years service in hilly/tribal/desert of rural areas.
Rule for weightage of marks:
(iii) The benefit of proviso to Clause 9(iv) would be available, if made applicable by the Government/competent authority under its discretion to those who are in the service of the Government/public authority. The weightage in marks would then be given as an incentive by 10% marks for each year of service in remote and/or difficult areas, as defined by the State Government/competent authority upto the maximum of 30% marks obtained in National Eligibility-cum-Entrance Test. If proviso to sub-clause (iv) of Clause 9 has been applied by the Government then a candidate having worked for two years in remote and/or difficult areas would be entitled to 20% marks and not 30% marks. 30% marks would be available only to a candidate who had served for three years in remote and/or difficult areas. The respondents are accordingly directed to strictly adhere to the amended Regulation (iv), if a decision is taken to apply proviso to sub-clause (iv) of Clause 9 and not otherwise.
[M.N.BHANDARI], J.
FRBOHRA/10191CWP2013.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A.