Madras High Court
Dr.C.Sudhan vs The Government Of India on 18 April, 2018
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.04.2018 CORAM: THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN W.P.Nos.6169 and 7821 of 2018 1. Dr.C.Sudhan 2. Dr.Paul Selvan 3. Dr.Mohamed Mohaideen 4. Dr.Mahesh Kumar 5. Dr.S.Ravindran 6. Dr.M.Kalai Mano Bharathi 7. Dr.Rekha ... Petitioners in W.P.No.6169 of 2018 Dr.S.Kannan ... Petitioner in W.P.No.7821 of 2018 vs. 1. The Government of India, rep. by its Secretary to Government, Ministry of Health and Family Welfare Department, Room No.348, 'A' Wing, Nirman Bhavan, New Delhi - 110 011. 2. The Director General of Health Services, Ministry of Health and Family Welfare Department, Nirman Bhavan, New Delhi - 110 011. 3. The Medical Council of India, Pocket 14, Sector - 8, Dwarka Phase 1, New Delhi - 110 077. ... Respondents in both W.Ps. Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of writ of Mandamus, directing the 1st and 2nd Respondents to comply with the Post Graduate Medical Education Regulations, 2000 with reference to awarding of weightage marks for the service rendered in remote/difficult areas and for reserving 50% of seats in Post Graduate Diploma Courses for eligible Medical Officers in Government Service, in respect of All India Quota Seats, based on NEET PG 2018 and consequently consider the Petitioner(s) for selection for admission to PG Medical Courses as per merit in selection. For Petitioner(s) Mr.P.Wilson, Senior Counsel in both W.Ps. : for Mr.G.Sankaran For Respondents 1 & 2 Mr.G.Karthikeyan in both W.Ps. : Asst. Solicitor General of India For 3rd Respondent in both W.Ps. : Mr.V.P.Raman C O M M O N O R D E R
Since both these Writ Petitions involve one and the same issue, they are being disposed of in common.
2. According to the the petitioners herein, they are working as Assistant Surgeons in Tamil Nadu Medical Services and posted in remote/difficult areas as notified by the Government of Tamil Nadu, as per Post Graduate Medical Education Regulations, 2000. They appeared for NEET PG 2018 conducted on 07.01.2018 and secured more than 50% marks and declared eligible for admission to PG Medical Courses. Aggrieved by the process of selection to PG courses adopted by the 2nd Respondent/Director General of Health Services, Ministry of Health and Family Welfare Department, New Delhi for All India 50% Quota seats, without awarding weightage marks for the services rendered in remote/difficult areas, as required under Clause 9 of PG Medical Education Regulations, 2000, Petitioners are before this Court by way of the present Writ Petitions.
3. The case of the Petitioners, runs thus:
3.1. As per Regulation 9 of PG Medical Education Regulations, 2000, there shall be a single eligibility cum entrance examination viz. National Eligibility cum Entrance Test (NEET) for admission to Post Graduate Medical Courses in each academic year. In order to be eligible for admission to any PG course in a particular academic year, it shall be necessary for a candidate to obtain minimum marks of 50% in NEET held for the said academic year. However, in respect of candidates belonging to SC/ST, OBC, the minimum marks shall be 40% and in respect of candidates with locomotory disability in lower limbs, the minimum marks shall be 45%.
3.2. The proviso to Regulation 9(IV) relates to awarding of weightage marks as an incentive to the candidates serving in remote/difficult areas at the rate of 10% of marks obtained for each year of service up to the maximum of 30% of marks obtained in NEET. The proviso to Regulation 9(VIII) relates to reservation of 50% of seats in PG Diploma Courses for the Medical Officers in Government Service, who have served for at least 3 years in remote/difficult areas.
3.3. In each Medical Institution, 50% of seats in MD/MS/PG Diploma Courses are directed to be filled up under All India Quota. Remaining 50% of seats in MD/MS/PG Diploma courses are to be filled up by respective State Government/Union Territory. As per Government of India Gazette Notification, dated 31.07.2017, the designated authority for Counselling for 50% All India Quota seats of the contributing seats shall be the Directorate of General Health Service (DGHS), Ministry of Health and Family Welfare Department, Government of India, the 2nd Respondent herein and the Counselling for PG courses in Medical Education Institutions in a State shall be conducted by the State Government.
3.4. Regulation 9 of PG Regulations, 2000 is 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 is the basis for admission to PG Medical Courses. In this regard, the Medical Council of India has framed Regulations inter alia, providing for giving incentive marks to "in-service candidates", who have worked in notified remote/difficult areas in the State, to determine their merit. Candidates are assigned specified marks in commensurate with the length of service rendered by them in remote/difficult areas in the State, linked to the marks obtained in NEET.
3.5. National Board of Examination (NBE) is authorized as Nodal Agency to conduct NEET PG for admission to MD/MS/PG Diploma Courses. The NBE has conducted NEET PG 2018 on 07.01.2018. As per NEET PG 2018 Prospectus, NEET is a qualifying cum ranking examination for admission to MD/MS/PG Diploma Courses of 2018 admission session and NBE has no role regarding counselling and allotment of seats except for DNB courses. NBE published the results for the NEET PG 2018 examination on 31.01.2018, as per which, the Petitioners have secured more than 50% marks and thereby, they are declared as eligible for admission to PG Medical courses. Thereafter, NBE issued notice dated 15.02.2018, declaring the NEET PG 2018 rank for the candidates, who cleared the Test and each candidate has been issued with rank card based on the marks secured by them in NEET. Subsequently, NBE published the results cum score card for NEET PG 2018 for All India 50% Quota seats as per notice dated 26.02.2018, as per which, the cut-off scores for All India 50% Quota for MD/MS/PG Diploma courses (2018 admission session) is as follows:
UR (50th percentile) OBC/SC/ST (40th percentile) UR-PH (45th percentile) 321 281 300
Accordingly, the Petitioners secured more than the cut-off score eligible for admission to PG courses in All India 50% Quota in 2018 admission session.
3.6. In this regard, the 2nd Respondent/DGHS proceeded to conduct counselling for admission to All India 50% Quota seats only based on the marks secured in NEET PG 2018, without awarding weightage marks for the candidates, who are serving in remote/difficult areas notified by the respective State Government. As per Regulation 9(IV), All India Merit list as well as State-wise merit list of candidates shall be prepared on the basis of marks obtained in NEET and candidates shall be admitted to PG courses from the said merit list only. Whereas, as per the proviso as amended vide Notification No.MCI.18(1)/2010-Med/49070, dated 21.02.2010, the weightage marks should be awarded for the candidates in Government service working in remote/difficult areas as an incentive at the rate of 10% of the marks obtained in NEET for each year of service in remote/difficult areas upto the maximum 30% of marks obtained in NEET.
3.7. Regulation 9 of PG Regulations, 2000 is applicable for admission both under State Quota and All India Quota seats and there cannot be any deviation from the Regulations for selection and admission to PG courses. Since the Petitioners are serving in remote/difficult areas as notified by the State Government, they are entitled for awarding of weightage marks as per Regulation 9(IV) of PG Regulations, 2000, seeking admission under All India Quota seats. Whereas, the 2nd Respondent is proceeding to conduct counselling for admission to PG courses, without awarding weightage marks for the service rendered in remote/difficult areas in violation to MCI Regulations.
3.8. As per the schedule stipulated for admission to PG Medical Courses, the All India Quota first Counselling is to be conducted before 31.03.2018. If the weightage marks are not awarded as provided in the proviso to Regulation 9(IV) and further, if 50% of seats in PG Diploma courses are not earmarked for service candidates while filling up All India Quota 50% seats, it will be in violation to MCI Regulations, offending the rights of the Petitioners, as provided under the Statute.
4. On behalf of the 1st Respondent/Ministry of Health and Family Welfare Department, a Memo has been filed, wherein, it is stated that the Scheme for 50% PG seats in Government Medical Colleges to be filled under the All India Quota is approved by the Supreme Court and that the Director General of Health Services in the Ministry of Health and Family Welfare has been entrusted with the responsibility to conduct online counselling for allotment of Post-Graduate seats to the candidates under 50% All India Quota every year. The allotment is made only to those candidates, who have been declared qualified in 50% All India Post Graduate Medical Entrance Examination (AIPGEE), presently NEET PG conducted by National Board of Examinations (NBE), New Delhi.
5. It is further stated in the Memo filed by the 1st Respondent that there is no provision of reservation for the candidates belonging to service category serving in the remote/difficult areas as per the Scheme approved by the Supreme Court. Therefore, the proviso to Regulation 9(IV), i.e. awarding of weightage marks as an incentive to the candidates serving in remote/difficult areas at the rate of 10% of the marks obtained for the year of service upto the maximum of 30% of marks obtained in NEET is not applicable to the All India Quota. It is further stated that there is not even OBC reservation in All India Quota so far and an SLP is pending before the Supreme Court in this regard.
6. The 3rd Respondent/Medical Council of India has also filed a Memo, wherein, it is stated that Regulations 9(IV) and 9(VIII) cannot be applied to All India Quota Counselling. According to the 3rd Respondent/ Medical Council of India, they amended the Post Graduate Medical Education Regulations, 2000 and provided for grant of incentive marks, so as to enable the State to have qualified Doctors serving in remote/difficult areas. The object of the Regulation was to attract Doctors to serve in remote/difficult areas of the State in lieu of which, incentive marks will be awarded to them in common entrance test. The whole scheme under Regulation 9 envisages grant of incentive marks by the State Government to those, who have served in notified remote/difficult areas, so that they get benefitted by securing a higher rank in the State merit list and that the said scheme does not contemplate grant of incentive marks at the All India level.
7. It is further stated by the 3rd Respondent/Medical Council of India that Regulation 9(IV) is an enabling provision, which clearly shows that it gives discretion to the State insofar as granting incentive to in-service Doctors, who have served in remote and/or difficult areas to be identified by the State. No person can claim such incentive as a matter of right and it is the discretion of the State to grant such incentive in the manner it deems fit, subject to it not being arbitrary, discriminatory and unreasonable.
8. Also, it is the case of the 3rd Respondent/Medical Council of India that Regulation 9(IV) itself grants power to the State Government in fixing the quantum/percentage of marks (subject to the outer limit of 30% of marks obtained in NEET) to be granted as an incentive to in-service Doctors to commensurate with the period of service rendered in remote and difficult areas. The State Government has the discretion to fix the percentage of marks to be granted as an incentive as well as the duration of service rendered by the in-service Doctors in order to be eligible to avail the benefit of marks given as incentive. The words 'at the rate of 10% of the marks obtained for each year of service' used in the above Regulations are directory and not mandatory and it is the discretion of the State to decide the quantum of marks. Depending upon the requirement of Doctors in remote and difficult areas, the State may fix for a higher duration of services for granting marks as an incentive, so that the laudable objective of attracting Doctors to serve in remote and/or difficult areas as also helping the State in making available qualified Doctors in such areas is achieved.
9. Learned Senior Counsel appearing for the Petitioners submitted that Regulation 9(VIII) of P.G. Regulations, 2000, provides that 50% seats in PG Diploma Courses shall be reserved for Medical Officers in Government Service, who have served at least 3 years in remote/difficult areas. But, the same has not been complied with by the 2nd Respondent for admission in All India Quota seats. Further, the admissions made by the 2nd Respondent in the academic year 2017-18 has proved that the 2nd Respondent has not allotted 50% of seats in PG Diploma Courses for service candidates as required under the Regulations. It is his contention that in the event of non-allocation of 50% of seats in PG Diploma Courses to the Doctors in Government service, the same will be in violation of MCI Regulations and further, it will deprive the opportunity of the Petitioners to get admission in 50% of seats in PG Diploma Courses, reserved for in-service candidates.
10. To substantiate his case, learned Senior Counsel appearing for the Petitioners has relied on the following decisions:
(i) Dinkar Anna Patil vs. State of Maharashtra, (1999) 1 SCC 354 "26. Coming to the interpretation of Rule 4-A, it is no doubt true that the language used therein indicates that the said Rule is made applicable retrospectively from the date when the Rules were made applicable w.e.f. 10-10-1982 (sic 15-10-1982). Rule 4-A opens with a non obstante clause and provides that if in the opinion of the State Government, the exigencies of service so require, the Government may in consultation with MPSC wherever necessary make appointments to the post in relaxation of the percentage prescribed in Rule 4 of the Rules by promotion and nomination. The Tribunal held that the word may used in this Rule is directory but in our considered view, to give such a meaning would render the very object of consultation with MPSC wherever necessary nugatory. It would give unbridled power to the Government to dispense with the consultation with MPSC which may result into arbitrary exercise of powers by the authority. This could never be the object of Rule 4-A. In our considered view, the word may must mean shall and this is also obvious from the correspondence between the State Government and MPSC. The Government of Maharashtra wanted to relax the quota rule but MPSC was not agreeable and ultimately it relented to the request of the Government of Maharashtra and suggested amended Rule 4-A. This suggestion was accepted and accordingly the amendment was inserted in the Rules. We also find support to our view from the decision of this Court in Keshav Chandra Joshi v. Union of India[1992 Supp (1) SCC 272 : 1993 SCC (L&S) 694 : (1993) 24 ATC 545] . This Court was dealing with the interpretation of Rule 27 of the U.P. Forest Service Rules, 1952 and the said Rule is similar to Rule 4-A. While construing the word may used in Rule 27, this Court held that the word may has to be read as shall and, therefore, consultation is mandatory. It must, therefore, follow that MPSC gave its approval to the relaxation vide its letter dated 28-3-1989 but by that time, several appointments of the departmental candidates on similar terms in the cadre of Sales Tax Officers Class I were made exceeding the quota rule. As far as the regularisation process is concerned, it is quite clear from the letter dated 28-3-1989 by MPSC to the Secretary, Finance Department calling upon the latter to furnish the details about the availability of posts yearwise with confidential records thereof in order to enable the Commission to take the decision on the pending select list and to regularise the promotions of the Sales Tax Officers Class I from 1982 to 31-12-1986. As stated earlier, the respondents did not produce any order regularising these private respondents. The appellants were appointed by nomination on or after September 1988 and, therefore, their placement in the seniority vis-`-vis the promotees will have to be determined on the basis of date of regular appointment in the cadre excluding the period of fortuitous appointment. Consequently, the impugned seniority lists as on 1991, 1993 and 1994 shall be modified suitably. In our considered view, Rule 4-A will have to be construed as indicated above and any other construction to the said Rule would violate the very object of the quota rule."
(ii) Sagar Pandurang Dhundare vs. Keshav Aaba Patil, (2018) 1 SCC 340 "11. Thus, under the statutory scheme, an encroacher is liable to be evicted by the panchayat and if the panchayat fails, the Collector has to take action. The encroacher is also liable to be prosecuted. Encroachment is certainly to be condemned, the encroacher evicted and punished. Desirably, there should not be a member in the panchayat with conflicting interest. But once a person is elected by the people, he can be unseated only in the manner provided under law. Even with the best of intention, if there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law-maker. It is entirely within the realm of the law-maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent. That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. That is not the situation here. In the Act, wherever the law-makers wanted to specify family, they have done so. As noted by some of the judgments of the High Court, in Explanation 2 for Section 14(1)(h), the failure to pay any tax or fee due to the panchayat or Zila Parishad by a member of a Hindu Undivided Family (HUF) or by a person belonging to a group has been expressly mentioned as a disqualification on others in the family or group. It is, therefore, evident that when the intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The Court, in the process of interpretation, cannot lay down what is desirable in its own opinion, if from the words used, the legislative intention is otherwise discernible.
14. As we have already noted above, the duty of the court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from the expressions used in the statute. The court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to the court if the legislative intent is otherwise not discernible. What is desirable is the jurisdiction of the law-maker and only what is discernible is that of the court. "
11. In response, Mr.G.Karthikeyan, learned Assistant Solicitor General of India, appearing for Respondents 1 and 2 submitted that the proviso to Regulation 9(IV) of Post Graduate Medical Education Regulations, 2000 is not applicable to All India Quota. He drew the attention of this Court to the order dated 30.04.1993 passed by the Supreme Court in W.P.(C) No.443 of 1992, wherein, it is observed that if there is any difficulty in the implementation of the scheme by the Director General of Health Services or by any other person including the authorities in the State or by the Universities, they can approach the Supreme Court for necessary action.
12. Mr.V.P.Raman, learned counsel appearing for the 3rd Respondent/Medical Council of India, submitted that the scheme of All India Quota Counselling as devised by the Supreme Court and conducted in compliance with the directions of the Supreme Court does not include weightage of marks to be awarded for services in rural area or reservation of seats in Diploma courses. He pointed out that the All India Quota scheme has been followed for almost 30 years and such benefits of weightage for rural services or reservation has never been applied to the All India Quota till date. Learned counsel further submitted that every State has separate criteria for awarding incentive marks and the Regulations 9(IV) and 9(VIII) cannot be applied on All India basis, as it would create an anomaly, since remote/difficult areas in one State cannot be equated with remote/difficult areas in another State.
13. In support of his contentions, learned counsel appearing for the 3rd Respondent/Medical Council of India, has relied on the following decisions:
(i) Dr.Dinesh Kumar II vs. Motilal Nehru Medical College, Allahabad, (1986) 3 SCC 727 "12. (4) The Government of India has suggested in the Scheme of examination for admission to postgraduate courses that a weightage equivalent to 15 per cent of the total marks obtained by a student at the All-India Entrance Examination should be given if he has put in a minimum of three years of rural service. It is, of course, eminently desirable that some incentive should be given to our doctors to go to the rural areas because there is concentration of doctors in the urban areas and the rural areas appear to be neglected. But we do not think that such incentive should go to the length of giving a weightage of 15 per cent of the total marks obtained by a candidate. There are several reasons why our doctors are not persuaded to go to the rural areas in order to serve the rural masses who are badly in need of medical assistance. Some of the reasons are attraction of urban life, the prospect of building up a lucrative practice which may be possible only in urban cities, lack of proper facilities and inadequate supply of necessary medicines and above all absence of social commitment and lack of desire to serve the poor and the disadvantaged. These are some of the difficulties which have to be overcome if we want doctors to move to the rural areas. We do not think that by merely offering a weightage of 15 per cent to a doctor for three years rural service we shall be able to bring about a migration of doctors from the urban to the rural areas. We are of the view that when selection of candidates is being made for admission on an all-India basis, no factor other than merit should be allowed to tilt the balance in favour of a candidate. We must remember that what we are regulating are admissions to postgraduate courses and if we want to produce doctors who are MD or MS, particularly surgeons who are going to operate upon human beings, it is of the utmost importance that the selection should be based on merit. Moreover, we are extremely doubtful if a candidate who has rendered three years rural service for the purpose of getting a weightage of 15 per cent would go back to the rural area after he has got MD or MS degree. We are, therefore, of the view that no weightage should be given to a candidate for rural service rendered by him so far as admissions to postgraduate courses are concerned. Even if an undertaking is taken from such a candidate that after obtaining MD or MS degree he will settle down in a rural area and serve the rural masses, it would in all probability serve no useful purpose because in the absence of the requisite facilities such as hospital, medical and surgical equipment, nursing etc. it would not be possible for him to give the advantage of his higher medical education to the rural masses and the higher medical education received by him would not be of service to the community."
(ii) Dr.Snehelata Patnaik vs. State of Orissa, (1992) 2 SCC 26 " ... 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 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 (see para 12 at page 741).
2. 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 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 up to 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 up to the end of this year."
(iii) State of Madhya Pradesh vs. Gopal D.Tirthani, (2003) 7 SCC 83 "30. In Dinesh Kumar (Dr) (II) v. Motilal Nehru Medical College [(1986) 3 SCC 727] the two-Judge Bench examined a scheme of examination for admission to postgraduate courses suggested by the Government of India stipulating a weightage equivalent to 15 per cent of the total marks obtained by a student at the All-India Entrance Examination being given if he has put in a minimum of 3 years of rural service. The Court observed that it was eminently desirable that some incentive should be given to the doctors to go to the rural areas because there is concentration of doctors in the urban areas and the rural areas appear to be neglected. In spite of recording such justification the learned Judges proceeded to opine that they did not think that such incentive should go to the length of giving a weightage of 15 per cent of the total marks obtained by a candidate. The learned Judges then examined several reasons why the doctors are not persuaded to go to the rural areas and then concluded: [SCC p. 741, para 12(4)] [W]e are extremely doubtful if a candidate who has rendered three years' rural service for the purpose of getting a weightage of 15 per cent would go back to the rural area after he has got MD or MS degree. We are, therefore, of the view that no weightage should be given to a candidate for rural service rendered by him so far as admissions to postgraduate courses are concerned. It is clear that the Court was dealing with weightage to be assigned at the All-India Entrance Examination and that too from the point of view whether the postgraduates would revert back to rural services after postgraduating and because of this being extremely doubtful there was no point in giving such a weightage.
31. The abovesaid observations came up for the consideration of a three-Judge Bench of this Court in Snehelata Patnaik (Dr) v. State of Orissa [(1992) 2 SCC 26 : 1992 SCC (L&S) 401 : (1992) 20 ATC 187] . It was held: (i) that the said observation does not constitute the ratio of the decision as the decision is not in any way dependent on those observations; (ii) that those observations are in connection with the all-India selection and do not have equal force when applied to selection for a single State; and (iii) that the observations have the effect of only making a suggestion that the weightage to be given must be the bare minimum required to meet the situation. Their Lordships then placed on record their overview by way of suggestion to the authorities who might well consider giving weightage up to 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. (SCC p. 27, para 2)"
(iv) State of Uttar Pradesh vs. Dinesh Kumar Chauhan, (2016) 9 SCC 749 "30. Coming to the next decision pressed into service in State of M.P. v. Gopal D. Tirthani [State of M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83 : 2 SCEC 301] , 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 analysed four earlier decisions of this Court; to wit, Dinesh Kumar v. Motilal Nehru Medical College [Dinesh Kumar v. Motilal Nehru Medical College, (1986) 3 SCC 727] , Snehelata Patnaik v. State of Orissa [Snehelata Patnaik v. State of Orissa, (1992) 2 SCC 26 : 1992 SCC (L&S) 401 : (1992) 20 ATC 187] , Narayan Sharma v. Pankaj Kr. Lehkar [Narayan Sharma v. Pankaj Kr. Lehkar, (2000) 1 SCC 44 : 1 SCEC 832] and State of U.P. v. Pradip Tandon [State of U.P. v. Pradip Tandon, (1975) 1 SCC 267 : 1 SCEC 263] . The Court in para 33 observed thus: (Tirthani case [State of M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83 : 2 SCEC 301] , SCC p. 106) 33. The case at hand presents an entirely different scenario. Firstly, it is a case of postgraduation 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 finalising the merit list of successful in-service candidates for admission to PG courses of studies. Had it been a reservation, considerations would have differed. 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.
14. Heard the learned counsel on either side and perused the material documents placed on record.
15. Though the Petitioners herein have secured more than 50% marks and declared eligible for admission to PG Medical Courses, their grievance is that the 2nd Respondent/Director General of Health Services, has proceeded with the selection process to PG Courses under All India Quota, without awarding weightage marks for the services rendered by them in remote/difficult areas, as required under Clause 9 of PG Medical Education Regulations, 2000.
16. For the sake of convenience, Regulations 9(IV) and 9(VIII) of the Post Graduate Medical Education Regulations, 2000, are extracted hereunder:
(IV) The reservation of seats in Medical Colleges/Institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An All India merit list as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Postgraduate Courses from the said merit lists 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 areas or Rural areas upto maximum of 30% of the marks obtained in National Eligibility-cum Entrance Test. The remote and/or difficult areas or Rural areas shall be as notified by State Government/Competent authority from time to time.
(VIII) 50% of the seats in Postgraduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult areas and/or Rural areas. After acquiring the Postgraduate Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas and/or Rural areas as defined by State Government/Competent Authority from time to time.
17. While so, the 3rd Respondent/Medical Council of India has taken a clear stand that the scheme of All India Quota Counselling does not include weightage marks to be awarded for the service rendered by Medical Officers in remote/difficult/rural areas and that reservation has never been applied to All India Quota till date.
18. On the question of awarding weightage marks to in-service candidates seeking admission to Post-Graduate Courses, the Supreme Court in the case of Snehelata Patnaik (cited supra) has clearly observed that in the process of selection of Doctors, particularly surgeons, who are going to operate upon human beings, it is of utmost importance that the selection should be based on merit and that no weightage should be given to a candidate for rural service rendered by him, so far as admission to post-graduate courses are concerned. In the said case, the Apex Court held that the said observations are in connection with All India Selection and do not have equal force when applied to selection from a single State.
19. In the case of Dr.Dinesh Kumar (cited supra), the Supreme Court observed that they are extremely doubtful if a candidate, who has rendered three years rural service for the purpose of getting a weightage of 15 per cent would go back to the rural area after he has got MD or MS degree and thus held that no weightage should be given to a candidate for rural service rendered by him, insofar as admissions to post-graduate courses are concerned.
20. Regulation 9 of Post Graduate Education Regulations, 2000 is a complete code. It prescribes the basis for determining the eligibilities of the candidates including the method to be adopted for determining the inter se merit, on the basis of the merit list of candidates appearing in NEET by including commensurate weightage marks to the in-service candidates. I am entirely in agreement with Regulation 9, as Regulation 9(IV) is aimed to attract Doctors to serve in remote/difficult areas of the State, for which, incentive marks is given, so that, it can be added with the marks obtained in NEET examination. However, the said Regulation does not contemplate grant of incentive marks to in-service candidates seeking PG admission, at All India level.
21. What is classified as a difficult/remote area in one State may certainly not be classified as difficult or remote in another State. It is the discretion of the State Government to fix the percentage of marks to be granted as incentive as well as the duration of service rendered by the in-service Doctor in order to be eligible to avail the benefit of the marks given as incentive. Percentage of marks that has to be granted to a Medical Officer for each year of service rendered by him/her as mentioned in Regulation 9, cannot, at any stretch of imagination, be said to be mandatory and it is only directory in nature.
22. If the contention of the Petitioners is accepted that incentive marks have to be granted to in-service candidates seeking P.G. Admission under All India Quota, then, candidates, who seek P.G. Admission in States, where rural/difficult/remote areas are not identified so far, will certainly be deprived of the benefit of marks that may be granted for in-service candidates, who work in rural/difficult/remote areas and this would certainly amount to discrimination. That is why, the Supreme Court, in the decisions cited supra, have clearly held that when admissions are sought by in-service candidates for P.G. Courses under All India Quota, the selection should be purely on merit, i.e. only based on NEET marks and weightage marks cannot be linked to NEET marks.
23. Further, a reading of Regulation 9(IV) and Regulation 9(VIII) of Post-Graduate Medical Education Regulations, 2000 makes it clear that weightage marks cannot be taken into account, while preparing All India Merit List and it is left to the discretion of each State. Each and every State is given the discretion to decide the areas, which can be identified as remote/difficult/rural areas and that each State has got a separate criteria for grant of incentive marks and it cannot be applied for All India Quota seats. If it is applied, it would certainly create anomaly, since the remote/difficult areas in one State cannot be equated with the remote/difficult areas in another State.
24. The insistence of NEET examination as per the Medical Council of India and by the Supreme Court of India is mainly on the context that if Doctors fail to perform a surgery correctly, the second surgery is nothing but a post-mortem. In a profession like Law, in certain Courts, there are intra-Court Appeals and in certain cases, the Apex Court can correct the errors. Whereas, if a Doctor performs a wrong surgery and the patient dies, certainly the loss cannot be set right to his/her family.
25. Thus, in the light of the decisions of the Apex Court relied on by the learned counsel appearing for the 3rd Respondent/Medical Council India, this Court is of the view that if a candidate wants to compete with other candidates on All India basis, it shall be based on NEET marks alone and that Regulation 9(IV) and 9(VIII) of the Post Graduate Education Regulations, 2000, cannot be applied to All India - Quota Counselling and that it applies only to in-service candidates in the respective State Governments. It is made clear that there cannot be any application of percentage of marks for in-service candidates and the demand of the Petitioners that there shall be reservation of 50% of seats in P.G. Diploma Courses, cannot be acceded to.
26. Before parting with, this Court observes that Merit, and Merit alone should be the criteria for efficient Doctors, so that people lead a healthy life, as 'Health is Wealth'.
In fine, Writ Petitions are dismissed with the above observation. No costs. Consequently, connected W.M.P.Nos.7609 and 7610 of 2018 in W.P.No.6169 of 2018 and W.M.P.Nos.9761 to 9763 of 2018 are closed.
18.04.2018
Index : Yes
Internet : Yes
Speaking Order : Yes
Note to Registry:
Issue copy of this order on 28.04.2018
(aeb)
To:
1. The Secretary to Government,
Government of India,
Ministry of Health and Family Welfare Department,
Room No.348, 'A' Wing, Nirman Bhavan,
New Delhi - 110 011.
2. The Director General of Health Services,
Ministry of Health and Family Welfare Department,
Nirman Bhavan,
New Delhi - 110 011.
3. The Medical Council of India,
Pocket 14, Sector - 8,
Dwarka Phase 1,
New Delhi - 110 077.
S.VAIDYANATHAN,J.
(aeb)
Common Order in
W.P.Nos.6169 & 7821 of 2018
18.04.2018