Rajasthan High Court - Jaipur
Dr. Jogesh Bhardwaj S/O Omprakash ... vs The State Of Rajasthan on 28 July, 2022
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9228/2022
1. Dr. Jogesh Bhardwaj S/o Omprakash Sharma, Aged About
28 Years, R/o Vpo Dantil, Village Pragpura, Tehsil Kotputli,
District Jaipur.
2. Dr. Sudhanshu Sharma S/o Mahesh Sharma, Aged About
28 Years, R/o B- 171, Kardhani, District Jaipur.
3. Dr. Dinesh Kumar Sewaliya S/o Mal Chand Sewaliya, Aged
About 28 Years, R/o Ambedkar Colony, Kuchaman City,
District Nagaur, Rajasthan - 341508.
4. Dr. Ajay Kumar Saini D/o Maliram Saini, Aged About 27
Years, R/o Village Nayan, Village And Post Amarshar,
Tehsil Shahpura, District Jaipur.
5. Dr. Ranu Sharma D/o Ramavtar Sharma, Aged About 27
Years, R/o House No. 7, Sector-III, Naka Madar, District
Ajmer, Rajasthan.
6. Dr. Sunita Yadav D/o Ramnarayan Yadav, Aged About 28
Years, R/o 45, Shyam Nagar Colony, Station Road, Tehsil
Chomu, Jaipur - 303702.
7. Dr. Pushpa Yadav W/o Kamal Kumar Yadav, Aged About
30 Years, R/o Jhadi Vali Kothi, Renwal, Jaipur - 303603.
----Petitioners
Versus
1. The State Of Rajasthan, Through Its Principal Secretary,
Medical And Health Department, Govt. Secretariat,
Rajasthan Govt. Jaipur.
2. The Director (Public Health), Medical And Health
Department, Swasthya Bhawan, C-Scheme, Jaipur -
(Raj.).
3. The Convener, NEET Pre-PG Examination, National Board
Of Examination, Medical Enclave, Ansari Nagar, Mahatma
Gandhi Marg, Ring Road, New Delhi - 110029.
----Respondents
S.B. Civil Writ Petition No. 10003/2022
Nidhi Punia D/o Dr. Jai Singh Punia, Aged About 27 Years,
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Resident Of Plot No. C-64, Kanta Khaturia Colony, Bikaner
(Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Medical Education Department, Government Secretariat,
Jaipur (Raj.)
2. The Principal Secretary, Medical And Health Department,
Government Secretariat, Jaipur
3. The Director (Public Health), Medical And Health
Services, Swasthya Bhawan, Tilak Marg, C-Scheme,
Jaipur
4. The Chairman, Pg Medical And Dental Counseling Board-
2022-2023, Government Dental College, Jaipur / RUHS
Dental College, Jaipur
5. National Medical Commission, Through Its Secretary,
Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi
6. The Chief Medical And Health Officer, Bikaner, District
Bikaner.
----Respondents
S.B. Civil Writ Petition No. 10031/2022
1. Dr. Pooja Chaudhary D/o Shri Kailash Chandra Jat, Aged
About 29 Years, Resident Of 171/14, Haldighati Marg,
Pratap Nagar, Jaipur (Raj.)
2. Dr. Namrata Kumari D/o Shri Jagsir Lal, Aged About 28
Years, Resident Of Village Dabri, Tehsil Bhadra,
Hanumangarh (Raj.)
3. Anjana Saini D/o Shri Jai Singh, Aged About 26 Years,
Resident Of Ward No. 3, Islampur, Jhunjhunu,
Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Medical Education Department, Government Secretariat,
Jaipur (Raj.)
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2. The Principal Secretary, Medical And Health Department,
Government Secretariat, Jaipur.
3. The Director (Public Health), Medical And Health
Services, Swasthya Bhawan, Tilak Marg, C-Scheme,
Jaipur.
4. The Chairman, Pg Medical And Dental Counseling Board-
2022-2023, Government Dental College, Jaipur/ RUHS
Dental College, Jaipur.
5. National Medical Commission Through Its Secretary,
Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi.
6. Chief Medical And Health Officer, Ratangarh, District
Churu.
7. Chief Medical And Health Officer, District Hanumangarh.
8. Chief Medical And Health Officer, Jaipur-II.
----Respondents
For Petitioner(s) : Mr.Mahendra Shah, Sr. Adv. with
Mr.Harendra Neel, Adv.
Mr.Tanveer Ahamad, Adv.
For Respondent(s) : Dr.V.B.Sharma, AAG assisted by
Mr.Harshal Tholia, Adv.
Mr.Angad Mirdha, Adv.
Mr.Ajay Shukla, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
28/07/2022
These writ petitions have been filed by the petitioners-In
Service Doctors for seeking a mandamus to count their services
upto 31.07.2022 for the purpose of grant of incentive marks, while
granting admission in Post Graduate Medical Course.
The petitioners have a common grievance that services
rendered by them in the rural area is only counted up to
30.04.2022 as per decision of the State Government
communicated to the different Controlling Officers of the In-
Service Doctors by letter dated 03.06.2022.
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The petitioners have grievance that the conditions Nos.3, 5 &
6 in the order/letter dated 03.06.2022 seriously affect their right
to get the bonus marks & State has acted arbitrarily while
prescribing these conditions.
Learned Senior counsel Mr.Mahendra Shah and learned
counsel Mr.Tanveer Ahamad appearing for the petitioners
submitted that the National Board of Examination (NBE) conducts NEET-PG Examination and by the notice dated 04.02.2022, the initial date of NEET-PG Examination, 2022, was rescheduled from 12.03.2022 to 21.05.2022.
Learned counsel for the petitioners submitted that a notice dated 16.02.2022 was issued by the National Board of Examination (NBE), whereby the cut-off date for completion of internship of MBBS Candidates for the purpose of eligibility of NEET-PG, 2022 was extended upto 31.07.2022.
Learned counsel for the petitioners submitted that cut off date for completion of internship for NEET-PG was extended for non-service/fresher candidates, then the State Government could not have prescribed cut off date for the In-Service candidates to count their experience upto 31.04.2022.
Learned counsel for the petitioners submitted that the respondent-State has not taken into account the relevant factors for counting the experience of In-Service Doctors and in an arbitrary manner, 30.04.2022 has been fixed by them.
Learned counsel for the petitioners submitted that the condition mentioned in the impugned letter/order dated 31.06.2022, though makes a reference of COVID-19 first/second phase, however, the COVID-19 situation still being not over, the (Downloaded on 25/12/2022 at 03:50:46 AM) (5 of 13) [CW-9228/2022] respondents could not have prescribed the date 30.04.2022 as cut off date for counting the experience.
Learned counsel for the petitioners submitted that the State Government, without any basis, has fixed the said cut off date and such date being arbitrary and unreasonable, needs to be declared bad & illegal by this Court and as such, the petitioners may be held entitled for counting their services up to 31.07.2022.
Learned counsel for the petitioners submitted that though the issue of cut off date was considered for the year 2021 by this Court in the case of Dr.Naveen Jakhar & Ors. Vs. State of Rajasthan & Ors. (S.B.Civil Writ Petition No. 687/2022) decided vide order dated 01.02.2022, however, the Division Bench, while upholding the order passed by the Single Bench reiterated the principle that the State Authorities while prescribing the date, has to keep in mind the relevant parameters and further, such date should have some basis and should not be arbitrary and unreasonable.
Learned counsel for the petitioners submitted that the petitioners have been treated in a discriminatory manner, as compared to the other non-service/fresher candidates and the hostile discrimination has been meted out to the petitioners, while fixing the date by the State Government.
Learned counsel for the petitioners submitted that the petitioners/In-Service Doctors or the fresh candidates form a same class with non-service candidates and if different dates have bee prescribed for the eligibility, the same will be violative of Article 14 of the Constitution of India.
Learned counsel for the petitioners submitted that the State Government, though has power & discretion to grant benefit of (Downloaded on 25/12/2022 at 03:50:46 AM) (6 of 13) [CW-9228/2022] bonus marks, however, the same should not have unfettered power to pick up any date of their choice.
Learned counsel for the petitioners submitted that in previous selection for the year 2021, the State Government had prescribed one particular date and later on, considering the COVID-19 situation, the said date for counting experience of In- service candidates was extended up to 30.09.2021.
Learned counsel submitted that there is no change of situation even now due to COVID-19, and as such the State Government should have applied the same parameters, while fixing the cut off date for the year 2022 as well.
Learned Additional Advocate General Dr.V.B.Sharma assisted by Mr.Harshal Tholia appearing for the respondents submitted that the present writ petitions have been filed by the petitioners without any basis and without having any right in their favour to seek a mandamus to fix a particular cut-off date for the purpose of counting experience for In-Service candidates.
Learned counsel submitted that the State Government has discretion to fix the cut off date for providing bonus marks to the In-Service Doctors and the decision taken by the State Government is a policy decision, by keeping in mind the relevant factors and as such there is no arbitrariness in the date fixed by the State Government, for counting the experience.
Learned counsel for the respondents submitted that In- Service Doctors form a distinct and distinguishable class and as such they cannot be equated with the fresh candidates.
Learned counsel for the respondents further submitted that 30th April of each year as the cut off date, for providing incentive (Downloaded on 25/12/2022 at 03:50:46 AM) (7 of 13) [CW-9228/2022] bonus marks, has always remained constant for all the years except the year 2021, as an exception.
Learned counsel submitted that in the year 2021 in view of the peculiar circumstances of COVID-19, the decision to extend the cut off date from 30.04.2021 to 30.09.2021, was taken.
Learned counsel for the respondents submitted that the State has right to make proper classification of the different group of candidates for the purpose of extending benefits and as such the In-Service Doctors form a separate class and for giving benefits to such candidates, no parity can be claimed with the Non-Service Doctors.
Learned counsel submitted that as far as cut off date for completing internship for Non-Service candidates is concerned, the National Board of Examinations (NBE) with consultation of Union of India, has prescribed the cut off date of 31.07.2022 and as such, the non-service Doctors form a separate class and accordingly, the cut off date has been prescribed.
Learned counsel for the respondents further submitted that fixing a cut off date is a policy decision and if any date is fixed by the State Government/Authorities, there will always be candidates, on both sides of the cut off date and one class of persons will be eligible and other class will be ineligible.
Learned counsel submitted that this Court is to see as whether the decision taken by the State Government is arbitrary from any stretch of imagination.
Learned counsel for the respondents further submitted that the issue with regard to power of the State Government to fix the cut off date has already been considered by this Court in the case (Downloaded on 25/12/2022 at 03:50:46 AM) (8 of 13) [CW-9228/2022] of Dr.Naveen Jakhar & Ors. Vs. State of Rajasthan & Ors. (supra) and the same has been upheld by the Division Bench.
Learned counsel for the respondents submitted that the Apex Court in the case of Shikhar and Anr. Vs. National Board of Examination and Ors. reported in 2022 SCC Online SC 425, has considered the issue of fixing the cut off date by the Authorities while conducting the NEET-PG examination, 2022.
Learned counsel submitted that though the case before the Apex Court was in respect of Non-Service candidates who wanted extension of date to complete their internship and the Apex Court after considering the previous decisions, came to the conclusion that the policy matters evolved by the State Government or other Authorities, do not require any interference by the Courts, as the Authorities have the sole prerogative to fix the cut off date, while keeping in mind the alternative considerations.
Learned counsel, on the strength of the said judgment, submitted that the prayer made by the petitioners to change the cut off date to count their experience up to 31.07.2022, may not be granted.
Learned counsel Mr.Angad Mirdha appearing on behalf of the respondent-National Medical Commission submitted that the petitioners, who are seeking benefit of services rendered in rural areas are primarily required to be dealt with by the State Government, while providing different parameters for counting the experience.
Learned counsel submitted that it is the sole prerogative of the State Government to prescribe the conditions for granting bonus marks to the In-Service candidates.
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(9 of 13) [CW-9228/2022] Learned counsel submitted that the petitioners do not have any vested right and it is the discretion of the State Government to extend benefit of bonus marks to the In-Service Candidates.
Learned counsel submitted that as far as comparison of the petitioners with other Non-Service/Fresh Candidates is concerned, the same cannot be granted to the petitioners, as the non-service candidates derive their eligibility, as per the conditions laid down by the National Board of Examinations (NBE), who in turn gets instructions from the Union of India.
Learned counsel submitted that the petitioners cannot in any manner be clubbed together for the purpose of granting eligibility or experience upto 31.07.2022.
Learned counsel Mr.Angad Mirdha also submitted that the State Government if has kept the relevant factors in mind and has fixed the cut off date, the same may not be tinkered by this Court.
Learned counsel for the petitioners Mr.Tanveer Ahamad submitted that condition No.3 in the letter/order dated 03.06.2022 is also arbitrary as the In-Service Doctors, who will complete their probation period up to 30.04.2022, only their forms will only be sent to the Higher Authorities.
I have heard the submissions made by learned counsel for the parties and perused the material available on record.
This Court finds that initially National Board of Examinations (NBE) had decided to conduct the NEET-PG Examination, 2022 on 12.03.2022, however, the same was rescheduled for 21.05.2022.
This Court further finds that the National Board of Examinations (NBE) issued notice dated 16.02.2022, whereby cut- off date for completion of the internship for the purpose of (Downloaded on 25/12/2022 at 03:50:46 AM) (10 of 13) [CW-9228/2022] eligibility for NEET-PG Examination, 2022, was extended upto 31.07.2022.
This Court finds that the State Government, after conducting the examination, issued a letter/order dated 03.06.2022 and prescribed that the In-Service Doctors, who are working in Rural/Difficult areas, their services upto 30.04.2022 will be counted for the purpose of grant of bonus marks.
This Court finds that the State Government has fixed 30.04.2022 as the cut off date, as it has been consistently following the same date every year except for the year 2021.
This Court finds that if the State Government has fixed the cut off date as 30th April in every year, when selection is being made for Post Graduate Medical Course, no arbitrariness can be attached to such decision of the State Government.
This Court further finds that an exception to the above date of 30th April was made by the State Government in the year 2021 as the COVID-19 situation was alarming situation for the entire country. The State Government, while keeping in mind the services rendered by the In-Service Candidates for the year 2021, in difficult time of COVID-19 situation, thought it proper that such In-Service Doctors who are working up to 30.09.2021 should be extended benefit of such bonus.
This Court, does not find any arbitrariness in the decision of the State Government for fixing the cut off date of 30 th April of a particular year, when these selections of PG Courses, are undertaken.
The submission of learned counsel for the petitioners that there is an apparent discrimination of the petitioners, qua the non-service candidates, as they have been extended the benefit of (Downloaded on 25/12/2022 at 03:50:46 AM) (11 of 13) [CW-9228/2022] completing their internship upto 31.07.2022, this Court finds that the Non-Service candidates form a separate class & the National Board of Examinations (NBE) while keeping in mind the curriculum of MBBS Course in different parts of the country, has fixed a particular date.
It is common knowledge to all that the eligibility to participate in the Post Graduate Medical Courses is from two sources i.e. (i) the Non-Service Candidates; and (ii) In-Service candidates. The freshers/non-service candidates form a separate class and as such the Competent Authority i.e. Union of India and National Board of Examinations (NBE) have fixed the cut-off date for them, by keeping in mind the relevant considerations.
The submission of learned counsel for the petitioners that the Policy decision of the State Government suffers from arbitrariness and unreasonableness, suffice it to say by this Court that the In-Service Doctors are granted benefit of bonus marks by the State Government by forming their own policy and as such there is no vested right in favour of the petitioners or In-Service Doctors that they can claim mandamus that benefit should be given to them in a particular way.
This Court further finds that the policy decision, which is taken by the State Government, if is taken by considering the relevant factors, then the same policy decision cannot be termed arbitrary by this Court.
This Court finds that the Apex Court in the case of Shikhar and Anr. Vs. National Board of Examination and Ors. (Supra) has recently dealt with the issue of fixing the cut off date while prescribing the eligibility to the different candidates in NEET-PG Course-2022. Though, the fact before the Apex Court was in (Downloaded on 25/12/2022 at 03:50:46 AM) (12 of 13) [CW-9228/2022] respect of those petitioners, who were Non-Service candidates and they wanted extension of date for completing internship, however, the Apex Court has laid down that judicial review of a policy decision and to issue mandamus to frame policy in a particular manner, is absolutely different and the same is in the realm of executive to take the policy decision based on prevailing circumstances for better administration. The relevant portion of the order passed in the case of Shikhar and Anr. Vs. National Board of Examination and Ors. (supra) is quoted hereunder:-
"4. In the present case, cogent reasons have been provided as to why the deadline for completing the internship cannot be extended. An extension of the cut-off any further would result in the disruption of the educational schedule, as indicated to the Court by the Additional Solicitor General. Moreover, students who have qualified in terms of the cut-off of 31 July 2022 will be prejudiced by the inevitable postponement of the schedule. Hence, it would not be appropriate for this Court to issue any such direction. The alternative prayer for the inclusion of the period of COVID duties in the internship requirements would also involve this Court in micro- managing the curriculum for the completion of medical courses. This is a function which, in our view, should not be assumed by the Court. Hence, though hardship has been caused to those students whose internship commenced much later, it would not be possible, at this stage, to disturb the schedule as it would affect the other students who fulfill the cut-off date of 31 July 2022."
This Court also finds that the decision passed by this Court in the case of Dr.Naveen Jakhar & Ors. Vs. State of Rajasthan & Ors. (supra) has been affirmed by the Division Bench. The relevant portion of the order is quoted hereunder:-
"28. This Court finds that fixation of a cut-off date, may be in a given case, cause hardship to a candidate or group of candidates but that perse (Downloaded on 25/12/2022 at 03:50:46 AM) (13 of 13) [CW-9228/2022] does not lead to the conclusion that such fixation of date itself is arbitrary. Any cut-off date, which is fixed by the State Government, will always be affecting some of the candidates but at the same time, fixation of cut-off date, if has a degree of inherent randomness, causing hardship to certain group of candidates, the same cannot be a ground to declare such date as arbitrary.
29. This Court finds that the writ Courts, under Article 226 of the Constitution, may not interfere in every decision that is taken on the administrative side and fixing of a cut-off date, will be out of purview of a writ Court until the same is either fixed by keeping in mind the whimsical considerations or fixed in a mala-fide manner."
This Court does not find any force in the present writ petitions and the same are dismissed.
(ASHOK KUMAR GAUR),J Monika/76 (Downloaded on 25/12/2022 at 03:50:46 AM) Powered by TCPDF (www.tcpdf.org)