Jammu & Kashmir High Court - Srinagar Bench
Aijaz Ahmad Lone vs J&K; Board Of Professional Entrance ... on 24 May, 2016
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.498/2016
CMP No.01/2016
Date of decision:24.05.2016
Aijaz Ahmad Lone
Vs.
J&K Board of Professional Entrance Examination & others
Coram:-
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Appearing counsel:-
For the Petitioner(s): Mr. G. A. Lone.
For the Respondent(s): Mr. Azhar-ul-Amin.
i) Whether to be reported
in Digest/Journal: YES
ii) Whether to be reported
in Press/Media: OPTIONAL
1. Vide notification No.119-BOPEE of 2015 dated
17.12.2015, applications have been invited from the candidates interested in appearing in the Entrance Test for admission to MD/MS/PG Diploma Courses 2016 in Government Medical Colleges of Srinagar and Jammu, SKIMS, Srinagar & ASCOMS-Jammu and MD Courses- 2016 in Government Dental College, Srinagar.
2. In the said notification it has been prescribed that the selection of the candidates will be governed by the J&K Board of Professional Entrance Examination Rules, 2014, JK Reservation Act, 2004, JK Reservation Rules, 2005, MCI and DCI Regulations and Guidelines as contained in the Electronic Information Brochure-2015 of the BOPEE. 2
3. Petitioner having applied has appeared in the entrance test. He is shown to have secured 124 marks in the written test and has been awarded 10 marks for having served in the "difficult area" for a period of over five years. In total he is shown to have secured 134 marks, but has not made the grade. After declaration of the results of the written test, the respondent Board has issued Notification No.10-BOPEE of 2016 dated 24.03.2016, notifying therein that the candidates with test ranks as mentioned therein are called for counselling.
4. Petitioner filed the instant petition claiming that he was entitled to 30% of the marks as obtained in the written test as per MCI Regulations, therefore, in total he would secure 161. 2 marks when the respondents No.3 to 5, belonging to rural services, have respectively secured 150, 149 and 149 marks.
5. While considering the application for interim relief, a direction was issued to the respondents to allow the petitioner to participate in counselling on his own risk and responsibility, which he has been allowed.
6. The admitted position is that the petitioner has applied in response to the notification No.119-BOPEE of 2015 and has appeared in the entrance test under Roll No.110435 wherein he is shown to have secured 73 marks in Paper-I 3 and 51 marks in Paper-II. He has been awarded 10 marks for having served for a period of more than five years in "difficult areas"(as defined under SRO 201 of 2006 dated 15.06.2006) i.e. 2 marks per year. So in total has secured 134 marks. The second admitted position is that 27 seats were to be filled up from Rural Services but only 19 candidates have been selected.
7. The first and most important question which arises for consideration is whether the petitioner for having served in "Difficult Rural Areas" is entitled to incentive of maximum 30% of the marks what he has obtained in the written test. In the admission notification No.119-BOPEE of 2015, it has been clearly notified that the selection will be governed by the J&K Board of Professional Examination Rules, 2014, JK Reservation Act, JK Reservation Rules, MCI and DCI Regulations and Guidelines as contained in the Electronic Information Brochure, 2015 of the BOPEE. In Clause III of Para 5 of the Information Brochure, 2015, under the head "Difficult Area Service" it has been provided that the candidates shall be entitled to a weightage in terms of SRO 401 dated 29th December, 2009, for having served in the "difficult area" as defined in Notification SRO 201 of 2006 dated 15.06.2006, to the extent of two marks for each 4 completed year of such service subject to a maximum of 10 marks. Each completed year of service has been shown to mean actual service days, even adhoc/contractual basis in such areas.
8. As per SRO 401 dated 29th December, 2009, as amended in the year 2009, weightage for serving in difficult areas as defined in Notification SRO 206 of 2006 to the extent of 2 marks for each completed year of service in such area subject to a maximum of 10 marks, has been allowed. It is the same position on the basis of which petitioner has been awarded 10 marks whereas according of Medical Council of India Postgraduate Medical Education Regulations, 2002, for such candidates who have worked in "difficult areas" incentive @10% of the marks obtained for each year of service in remote and/or difficult areas up to maximum of 30% of the marks obtained, has been permitted. The relevant portion of Regulation No.9 shall be advantageous to be quoted:
"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 at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas up to the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult 5 areas shall be as defined by State Government/competent authority from time to time."
9. Confronted with this position, learned counsel for the respondent Board submitted that the word "may" as employed, gives discretion to the Board, therefore, same is not "mandatory" but "directory", as such, State has allowed only 2 marks for each year subject to maximum of 10 marks in case of such candidates. The MCI Regulation is an enabling provision, therefore, does not bind the State to award incentive as prescribed by it.
10. Contention of the learned counsel for the respondent Board to the extent that it is a choice for the State and the MCI Regulations are not binding, is totally misplaced because MCI Regulations/Guidelines have statutory force. In addition thereto, in the admission notification it has been in clear cut terms prescribed that the selection shall be governed by MCI Regulations as well, therefore, MCI Regulations and the Guidelines as contained in the information Brochure of the respondent Board are in conflict. When it is so, MCI Regulations will prevail. In my view I am fortified by the judgment captioned Sudhir N. and others Vs. State of Kerala and others reported in (2015) 6 SCC 685. Para 14 is relevant to be quoted: 6
"14.Regulation 9 of the Regulations framed under the MCI Act, inter alia, provides that admission to post-graduate medical courses shall be made strictly on the basis of inter se academic merit of the candidates. The Regulation further stipulates the methodology for determining the academic merit of the candidate. It reads:
"9. Selection of Postgraduate Students-- (1) (a) Students for Postgraduate medical courses shall be selected strictly on the basis of their inter-se Academic Merit.
(b) 50% of 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 difficult areas.
After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas. (2) For determining the "Academic Merit", the University/Institution may adopt the following methodologies:
(a) On the basis of merit as determined by a 'Competitive Test' conducted by the state government or by the competent authority appointed by the state government or by the university/group of universities in the same state; or\
(b) On the basis of merit as determined by a centralised competitive test held at the national level; or
(c) On the basis of the individual cumulative performance at the first, second and third MBBS examinations provided admissions are University wise;
or
(d) Combination of (a) and (c).
Provided that wherever 'Entrance Test' for postgraduates admission is held by a state government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical 7 course shall be 50 percent for general category candidates and 40 percent for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes.
Provided further that in Non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority notified by the State Government and the remaining fifty percent by the management(s) of the institution on the basis of inter-se Academic Merit.
Further provided that in determining the merit and the entrance test for postgraduate admission weightage in the marks be given as an incentive at the rate of 10% of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30% of the marks obtained.' (Emphasis supplied) The above leaves no manner of doubt that admissions to post-graduate medical courses have to be made only on the basis of academic merit of the candidates. It is clear from sub-Regulation (2) (supra) that for determining the "academic merit" the university/institution can adopt any of the methodologies stipulated therein. In terms of proviso (1) to Regulation 9, general category candidates must secure 50% marks while those belonging to SC/ST and other backwards classes are required to secure at least 40% marks in the entrance test in order to be eligible for admission. In terms of the third proviso to Rule 9 (supra) weightage for service rendered in remote and difficult areas is made permissible at the rate of 10% of the marks obtained for each year in service in remote or difficult areas upto a maximum 30% of the marks."
(Emphasis supplied) Again following portion from Para 15 is relevant to be quoted:
" Regulation 9 is, in our opinion, a complete code by itself inasmuch as it prescribes the basis for determining the eligibility of the candidates including the method to be adopted for determining the inter se merit which remains the only basis for such admissions. To the performance in the entrance test can be added weightage on account of rural service rendered by the candidates in the manner and to the extent indicated in the third proviso to Regulation 9. "
(Emphasis supplied) 8 Following portion from Para 24 is also relevant to be quoted:
"It is in the light of the above pronouncements futile to argue that the impugned legislation can hold the field even when it is in clear breach of the Medical Council of India's Regulations. The High Court was, in our opinion, right in holding that inasmuch as the provisions of Section 5(4) of the impugned enactment provides a basis for selection of candidates different from the one stipulated by the MCI Regulations it was beyond the legislative competence of the State Legislature....."
11. The aforesaid position is also followed in the judgment rendered by the Division Bench of this Court in the case of Arvind Kohli(Dr.) Vs. Sham Singh (Dr.) & Ors, reported in 2011(3) JKJ 328(HC). Para 67 and 68 are relevant to be quoted:
"67.The Hon'ble Supreme Court in the said decision also over ruled an earlier decision of the Supreme Court reported in (1994) 4 SCC 401, Ajay Kumar Singh v. State of Bihar, wherein it was held that the power of the Medical Council under Section 20 was purely advisory and had no binding character.
68. In a subsequent decision of the Hon'ble Supreme Court reported in (2003) 8 SCC 69, Harish Verma and Ors. v. Ajay Srivastava and anr., the Hon'ble Supreme Court has summarized the legal position stated by the constitutional bench decision succinctly as under in paragraph no.15(ii):-
"(ii)The Medical Council Regulations have statutory force and are mandatory. The Act contemplates the Medical Council of India having 9 been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission to medical institutions. The Medical Council has to keep overall vigilance to prevent sub-standard entrance qualifications for medical courses. These observations apply equally to postgraduate medical courses."
(Emphasis supplied)
12. After amendment of Regulation 9 of MCI Regulations in the year 2013, the State Government, as a follow up, has not undertaken any exercise to give incentive of 30% marks. In the year 2009, in terms of SRO 401, that too by way of amendment, it has been provided that 2 marks shall be awarded as incentive per year for "difficult rural area" service. Therefore, contention of the counsel for the respondents that it is choice of the State Government to follow MCI Regulations for award of incentive is misplaced.
13. It is clear that MCI Regulations have statutory force, therefore, prevail a vis-a-vis award of marks for working in "difficult areas" as defined in SRO 201 of 2006.
14. The next limb of argument of the learned counsel for the respondent Board is that the word "may" as appear in Regulation No.9 is "directory" not "mandatory" but its position has to be considered in the background in which 10 the said word has been used. It is settled that the word "may" and "shall" do not conclusively decide whether provision is directory or mandatory. For taking it in its true sense for proper interpretation, the object and purpose has to be looked into. In my view I am fortified by the judgment rendered by the Hon'ble Apex Court in the case D. K. Basu Vs. State of West Bengal and others, (2015) 8 SCC 744 and also by the judgment rendered in the case of Bachahan Devi and another Vs. Nagar Nigam, Gorakhpur and another reported in (2008) 12 SCC 372. Para 18 of the judgment in Bachahan Devi's case is advantageous to be quoted:
"14. It is well settled that the use of the word "may" in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word "may" as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word "may", the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well settled that where the word "may" involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word "may" should be interpreted to convey a mandatory force. As a general rule, the word "may" is permissive and operative to 11 confer discretion and especially so, where it is used in juxtaposition to the word "shall"
which ordinarily is imperative as it imposes a duty. Cases, however, are not wanting where the words "may", "shall" and "must" are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances."
15. In the background of the law, as has been laid down, coming to the instant case, the object of granting incentive to the candidates having worked in the remote or difficult areas, in essence, is to promote better medical facilities to rural masses. In this regard it shall be relevant to notice that on 13th August, 2013, Press Information Bureau, Government of India, Ministry of Health and Family Welfare, have issued a note on detail of measures taken by the Central Government to encourage doctors to work in rural and remote areas under the head "shortage of medical personal in rural areas". In the said memo, amendment of the Post Graduate Medical Education Regulations, 2000 has been quoted to provide as under:
"(i) 50% reservation in Post Graduation Diploma Courses for Medical Officers in the Government service who have served for at least three years in remote and difficult areas; and
(ii) incentive at the rate of 10% of the marks obtained for each year in service in remote or difficult areas up to the maximum of 30% of the marks obtained in the entrance test for admissions in Post Graduate Medical Courses."12
16. The State of Jammu and Kashmir also taking note of shortage of medical staff in rural areas has issued SRO 201 of 2006 to define as to what are the "difficult areas". SRO 401 as amended in the year 2009 provide for weightage for service in difficult areas i.e. 2 marks for each year subject to maximum of 10 marks whereas as per Regulation No.9 of the MCI Regulations, the incentive in case of such candidates is @10% marks obtained for each year subject to maximum of 30%.
17. The laudable object of providing incentive is to ensure proper medical facilities to the people living in "difficult rural areas". When it is a policy decision, that too in the interests of people living in rural as well as in difficult areas, then the word "may" as employed, has to be interpreted purposively so as to advance the object i.e. to encourage the doctors to work in "difficult areas". When Medical Council of India Regulations provides higher incentives, the State cannot keep it on lower side in derogation to the same. "Difficult areas" everywhere are the same. In case submission of the learned counsel would be accepted then same candidate availing the benefit of MCI Regulations will get one treatment whereas the candidates, who if governed in terms of SRO 401, will be treated differently. Same could be permissible in case 13 MCI Regulations would not have been applicable. The admission notification itself provides for applicability of MCI and DCI Regulations as well for guidelines contained in Electronic Information Brochure, 2015, issued by the respondent Board but MCI Regulations will prevail. Therefore, the word "may" as employed in the Regulations, as quoted above, is "mandatory" not "directory".
18. Question will now arise that in case maximum of 30% marks obtained on yearly basis are awarded then all similarly situated candidates have to be awarded same marks. It is only the candidates under the category rural service having worked in difficult areas as defined under SRO 201 of 2006 are entitled to that treatment. If any of the candidates from the rural services falls within the category of having served in "difficult areas" as defined under SRO 201 of 2006 shall also be treated alike and after doing so, whosoever makes the grade has to be selected.
19. Another contention of learned counsel for the petitioner is that 27 candidates were to be selected from the rural service category but only 19 have been selected. This position has been specifically pleaded in Para 11 and 13 14 of the memo of petition. Same position has not been controverted in the reply as filed by the respondents.
20. The position of providing 27 seats to the rural services is also clear from the Information Brochure, 2015 issued by the respondent Board under the caption "Category-wise distribution of seats", same is quoted here-under:
MD/MS Total OM Category Category Wise Distribution Degree Seats (65%) (35%) Courses SC ST RBA ALC OSC CDP SP RS Total (4%) (5%) (10%) (2%) (1%) (2%) (1%) (10%) 177 94 11 13 27 6 2 5 2 27 93+1
21. Rural service candidates include the candidates having worked in "difficult areas" as defined under SRO 201 of 2006. Though there is no specific reply but it is inferable that perhaps only 19 candidates had made the grade. Now after undertaking the exercise if only petitioner would be found getting incentive of marks @10% of the marks obtained per year subject to maximum of 30%, then he has to be selected as against one of the seats which were not filled up from the class "rural services".
22. While summing up what would emerge is that the petitioner, admittedly, is entitled to the incentive of 10% subject to maximum of 30% marks as provided under Regulation 9 of the MCI Regulations. He, admittedly, has 15 obtained 73 marks in Paper-I and 51 marks in Paper-II, in total 124 marks, then has been awarded 10 marks for having worked in "difficult rural areas". In total he is shown to have secured 134 marks but instead of 10 marks, he shall be entitled to the incentive of maximum 30% marks as per Regulation 9 quoted above, so shall be entitled to incentive of 37.2% marks for having served in "difficult rural areas" i.e. 30% of 124 marks, in total shall be entitled to 124+37.2=161.2 marks. Same shall be considered to be awarded to him as well as to other candidates, if any, falling within such category. In case after awarding incentive of 30% marks to the other candidates, if any, belonging to said category, if petitioner makes the grade, then since his counselling has already been done, he shall be selected against the seat which already stand reserved under the category "Rural Service Candidate" pursuant to the direction dated 31st March, 2016.
23. Petition succeeds so shall stand disposed of as above along with connected CMP.
(Mohammad Yaqoob Mir) Judge Srinagar 24.05.2016 "Mohammad Altaf"