Madhya Pradesh High Court
Dr. Rajni Shende vs The State Of Madhya Pradesh on 16 March, 2022
Author: Sujoy Paul
Bench: Sujoy Paul, Dwarka Dhish Bansal
-: 1 :-
W.P. No.3138 of 2022
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16th MARCH, 2022
WRIT PETITION No. 3138 of 2022
BETWEEN :-
Dr. Rajni Shende,
Medical Officer, C.H.C. Katangi, Balaghat,
W/o Mr. Hemant Meshram,
aged 40 years,
R/o Anand Marg, Narmada Nagar,
Balaghat, (M.P.).
........Petitioner
(By Shri Siddharth Radhe Lal Gupta, Advocate)
AND
1. State of Madhya Pradesh,
Through its Principal Secretary,
Department of Public Health and Family Welfare,
Vallagh Bhawan, Bhopal, (M.P.),
2. State of Madhya Pradesh,
Through its Director,
Department of Medical Education,
5th Floor, Satpura Bhawan, Bhopal, (M.P.),
3. Director/ Commissioner,
Department of Medical Education,
5th Floor, Satpura Bhawan, Bhopal, (M.P.), 462004,
4. Commissioner,
Department of Health, 6th Floor, Satpura Bhawan,
Bhopal, (M.P.) 462004,
......Respondents
(By Smt. Janhvi Pandit, Deputy Advocate General)
-: 2 :-
W.P. No.3138 of 2022
Whether approved for YES
reporting
Law Laid down :- 1. M.P. Chikatsa Shiksha Pravesh Niyam 2018
(Admission Rules)-In service- candidate- The
regular/ contractual government employee who
after obtaining NOC from employer got
himself/herself registered in the portal alone can
become 'in-service candidate'.
Rule-6 of Admission Rules-Registration: The
selected candidate needs to get herself registered
within prescribed time limit by furnishing
necessary information on the official portal in
prescribed format.
2. Interpretation of Statute: If language of statute
is clear and unambiguous, it has to be given effect
to irrespective of the consequence.
3. Interpretation of statute: If statute prescribes a
thing to be done in a particular manner, it has to be
done in the same manner and other methods are
unknown to law.
4. The technical defect- Proof of qualification:-
The candidate is required to submit necessary
application/candidature within stipulated time and
before the cut-off date prescribed. If document in
support of qualification is not furnished although
candidate possessed it, could have been furnished
in certain circumstances as per the judgment of
Supreme Court in Charles K. Skaria and others
(Supra). In the instant case, said judgment cannot
be made applicable because candidate did not get
herself registered within stipulated time and did not
furnish necessary information in prescribed format.
O R D E R
SUJOY PAUL, J.
The petitioner a MBBS qualified Doctor working as Medical Officer in Department of Health Services, Government of Madhya Pradesh and currently posted at Tahsil Katangi, district Balaghat has filed this petition under Article 226 of the Constitution of India seeking a direction to treat her as an 'in service candidate' as per Admission Rules, 2018 and accordingly extend her the benefit of 30% reservation/source of entry with additional incentive marks to the tune of 30% as per provisions of Regulation 9 (IV) of -: 3 :- W.P. No.3138 of 2022 the M.C.I. Regulations 2000 in the on going counselling process for admission to Post Graduate (P.G.) Course.
2. Briefly stated, relevant facts are that the petitioner was appointed as Medical Officer in April 2011 (Annexure P/1). After rendering services in District Hospital, Betul for some time, she was transferred and posted to Community Health Centre, (C.H.C.), Katangi, District Balaghat in January 2017. The certificate issued by Chief Medical & Health Officer, (C.M.H.O.) is Annexure P/2.
3. Indisputably, petitioner belongs to S.C. category and is a Government Employee. The petitioner pleaded that the Commissioner, Department of Medical Education through communication dated 12.11.2021, (Annexure P/4) directed all P.S.Us., District Hospitals, C.M.H.Os. etc. to send a list of all the 'in-service Doctors' rendering services in their respective Districts. It was the responsibility of said officers to furnish such information of Doctors to the D.H.S. and D.M.E. so that the candidates who appeared in the NEET, P.G. Examination can be given the benefit of 30% reservation.
4. The Government opened the counselling process through public notice dated 12.10.2021 (Annexure P/5). In this notice, it was specifically mentioned that concerned 'in-service Medical Officer' must get their registration done as 'open category candidate' in the registration which is to start from 11.10.2021 and to be continued till 17.10.2021. It was further made clear that post registration, prior to counselling, the status of the concerned in-service Medical Officer shall be automatically updated by the Counselling Authority/State Authority as 'in-service candidate' and they shall be given intimation in this regard.
-: 4 :-W.P. No.3138 of 2022
5. The D.M.E. issued another public notice dated 12.01.2022 mentioning details of all the 'in-service candidates' working with the D.H.S., M.P. and other Health Departments, which was required to be automatically updated on the website by latest on 17.1.2022. No intimation was given for any 'in- service candidate' to approach C.M.H.O. or the D.H.S. to claim the candidature for 'in-service category' reservation but primarily it was through and through the responsibility of the concerned C.M.H.O. and D.H.S, M.P., wherein concerned employee was working to furnish the details.
6. Shri Siddharth Radhelal Gupta, learned counsel for petitioner submits that the merit list was uploaded on the official website of D.M.E. in the 'in- service category' on 17.1.2022 (Annexure P/7). The petitioner's name did not find place in the merit list of 'in-service candidate'. Indeed, it is mentioned in overall merit list prepared for open category candidates ('non in-service') at sl. no. 2760. Hence, petitioner was treated as SC/reserved category candidate but not 'in-service candidate'.
7. In the previous year also, while taking NEET examination, the C.M.H.O. issued a form 8-A certificate to her for getting the benefit of incentive marks of 30%. The said form 8-A is filed as Annexure P/9.
8. In the current year, C.M.H.O. realized his fault and issued the form 8- A certificate to the petitioner belatedly on 20.1.2022 (Annexure P/10). This form contains an entry that petitioner has served in remote, difficult and rural areas.
9. When petitioner found her name missing in the merit list of 'in-service candidate' (Annexure P/8), she started representing the matter before the authorities. One such representation dated 24.1.2022 is filed as Annexure -: 5 :- W.P. No.3138 of 2022 P/11. No corrective steps were taken by the department. On the contrary, petitioner was treated as S.C. category candidate, which is evident from Annenxure P/12.
10. The contention of petitioner is that as per definition of 'in-service candidate' mentioned in the Admission Rules of 2018, the petitioner who is working as Medical Officer is automatically covered as 'in-service candidate'. Rule 14 (4) starts with the requirement of procuring NOC from the employer, i.e. D.H.S., M.P. It is argued that this requirement is only directory and not mandatory because no penal consequences of the absence of said NOC prior to registration with the Online Portal is provided. Thus, for want of a technical document of NOC, petitioner cannot be deprived of the fruits of an 'in-service candidate'.
11. The next contention of petitioner is based on regulation no.9(4) of M.C.I. P.G. Regulations 2000. It is urged that as per order dated 28.2.2019, the petitioner has worked in schedule area (Entry No. 31 in Schedule 2), and, therefore, she is entitled to get additional incentive marks. If said marks are given, she will be entitled to get seats of M.S. Obstetrics & Gynecology in M.G.M. Indore or G.M.C., Bhopal. Choice filling report (Annexure P/17) is relied upon for this purpose.
12. It is further urged that if petitioner succeeds, she would be allotted the singular reserved seat for S.C. category (Women) in the Obstetrics & Gynecology in M.G.M. Indore and Gandhi Medical College, Bhopal. This claim is based on the submission that if 30% marks which the petitioner is entitled to are added to her existing marks, i.e. 317 + 30% of 317 (95.1) is equal to 412 marks. Thus, she would be the highest scorer among all the SC -: 6 :- W.P. No.3138 of 2022 category candidates in the separately prepared merit list of 'in-service candidates', who are having a separate source of entry of 30% in M.P.
13. To sum up, learned counsel for the petitioner urged that :-
(A) That if on the date of application, the petitioner was possessing eligibility and experience for being considered and selected as a 'in-service candidate', the said benefit cannot be denied for the absence of any eligibility/experience certificate. If during counselling, said certificate is produced by the petitioner, no hyper technical approach should deprive the petitioner from the fruits of consideration and selection. Reliance is placed on (1980) 2 SCC 752 (Charles K. Skaria & Ors. Vs. Dr. C. Mathew & Ors.), (2019) 5 SCC 793 (Food Corporation of India Vs. Rimjhim), (2005) 9 SCC 779 (Dolly Chhanda Vs. Chairman, JEE & Ors.) and judgment of Madras High Court in W.P. No. 8223/2017 & WMP No.8978 of 2017 and WMP 8978/2017 (R. Vimalkanth Vs. Food Corporation of India).
(B) If all necessary requirements of any application are fulfilled by the petitioner then for want of a document like NOC from a particular authority, the intended benefit under the applicable rules must not be denied. Reference is made to (2015) 3 M.P.L.J. 657 (Gyanjeet Sewa Mission Trust Vs. Union of India and Ors.), (2014) 14 SCC 675 (Royal Medical Test (Registered Vs. Union of India & Anr.), (2015) 10 SCC 80 (Ponnaiyah Ramajayam Institute of Science & Technology Trust Vs. Medical Council of India & Anr.), 2015 SCC OnLine, Ker. 3193 (Medical Council of India Vs. S.R. Educational and Charitable Trust, 2021 SCC OnLine -: 7 :- W.P. No.3138 of 2022 Del 3896 (Career Convent Educational and Charitable Trust Vs. Union of India and Another).
14. Without prejudice to the aforesaid contentions, Shri Gupta submits that in case this court does not want to upset the process, which has already taken place, the petitioner can be permitted to participate in the mop up round as in-service SC/Women category candidate. In view of interim orders passed by this court, the respondents are bound to give appropriate seat to the petitioner.
15. Ms. Janhvi Pandit, learned Deputy Advocate General opposed the prayer of petitioner and urged that the petition is misconceived. The Public Health & Family Welfare Departments order dated 28.2.2019 (Annexure P/13) shows that as per Clause 3.3 and 3.7 of the said order all the eligible 'in-service candidates' (Medical Officers) were required to submit their applications alongwith the result of their examination to the Directorate of Health Services, but thereafter, the Directorate of Health Services was required to calculate the marks obtained by the 'in-service candidates' and prepare a complete list of the candidates.
16. Application in prescribed form 8, 8-A and Annexure C were required to be submitted to the concerned CMHO, who in turn, was required to forward the same to the Directorate of Health Services. For this reason, the letter dated 29.9.2021 (Annexure AR/1) was issued by the Directorate of Health Services addressed to all the Chief Medical & Health Officers required 'in-service candidates' to submit their details in the said prescribed forms before 4.10.2021, the last date for forwarding the list of 'in-service -: 8 :- W.P. No.3138 of 2022 candidate' to the Directorate, Health Services. A copy of letter dated 29.9.2021 is filed with additional return as (Annexure AR/1).
It is further averred that the Directorate issued a tentative list on 2.11.2021 on the basis of information of candidate received in form 8 and 8- A and called the objection from the in-service candidates whose names have been left-over/ not included in the list of in-service candidates. Petitioner despite being aware about the said list which did not contain her name, not raised any objection. The petitioner's representation dated 24.1.2022 (Annexure P/11) shows that she admittedly did not furnish necessary information to the Directorate within stipulated time.
17. Learned Deputy Advocate General strenuously contended that entire process is conducted in a centralized manner and the details of the orders issued are uploaded on the official website of Directorate of Health Services, i.e. www.mponline.gov.in. All candidates viewed it and acted in accordance with information contained therein. A copy of list of orders uploaded on the website is filed as Annexure AR/2. Thus, it was the duty and responsibility of the candidate concerned to be vigilant and submit her application in the prescribed format in time as prescribed by the rules, guidelines and orders issued in this regard from time to time. The petitioner was required to submit her application in form 8, 8-A and Annexure- C in time to the concerned CMHO, who in turn was required to forward the same to DHS.
18. Ms. Janhvi Pandit, learned Deputy Advocate General placed heavy reliance on the language employed in definition of 'in-service candidate' as per Admission Rules as well as on Rule 14 (4). She submits that a conjoint reading of the definition and letter dated 29.9.2021 (Annexure AR/1) -: 9 :- W.P. No.3138 of 2022 aforesaid, the methodology prescribed for registration and cut-off date upto which petitioner was required to submit her candidature clearly shows that if petitioner failed to do so, she cannot take advantage of her own wrong and claim status of 'in-service candidate'.
19. Based on the judgments of Supreme Court reported in AIR 1999 SC 3558 (Chandra Kishore Jha Vs. Mahavir Prasad and others), AIR 2001 SC 1512 (Dhanajaya Reddy Vs. State of Karnataka), it is argued that if statute provides that a thing is to be done in a particular manner, then it has to be done in the same manner and in no other manner than the manner prescribed. Since, petitioner has not followed the said manner, the petitioner does not deserve any relief.
20. AIR 1997 M.P. 56 (State of M.P. Vs. Jitendra Kishore Bhargava) is pressed into service by contending that in the mid way when selection/counselling process is in full swing, interference is not warranted. For the same purpose 2002 (7) SCC 252 (M.C.I. Vs. Madhu Singh) is relied upon.
21. Lastly, Ms. Pandit submits that in W.P. No. 14736/2019 (Ayushi Sarogi Vs. State of M.P.) it was clearly held that sanctity of admission process must be maintained. If candidature is not in consonance with the prescribed procedure, no relief is due to the candidate.
22. Shri Gupta and Ms. Janhvi Pandit filed brief synopsis in support of aforesaid submissions.
23. The parties confined their arguments to the extent indicated above.
24. We have heard the learned counsel for the parties at length and perused the record.
-: 10 :-W.P. No.3138 of 2022
25. Before dealing with the rival contentions advanced at the Bar, it is apposite to reproduce the notice dated 12.10.2021, which reads as under :-
fnukad 12@10@2021 @@ lsokjr vH;fFkZ;ksa gsrq vko';d lwpuk@@ leLr ik= lsokjr vH;fFkZ;ksa ¼LokLF; lsok;sa ,oa fpfdRlk f'k{kk ds vUrxZr 'kkldh; egkfo|ky; esa dk;Zjr izn'kZd] V~;wVj ,oa fpfdRlk vf/kdkjh½ dks lwfpr fd;k tkrk gS fd e/;izns'k jkT; Lrjh; la;qDr dkmaflfyax uhV ih-th- 2021 ds fy, fu/kkZfjr le; lkj.kh vuqlkj iathdj.k dh izfdz;k (Registration) fnukad 11@10@2021 ls fnukad 17@10@2021 rd dh tkuh gS] vr% os viuk jftLVªs'ku vksiu vH;FkhZ dh Js.kh esa mijksDr le;kof/k esa vfuok;Z :i ls dj ysaA ik= iathd`r vH;FkhZ dh vksiu Js.kh dks iathd`r vH;fFkZ;ksa dh esfjV lwph iznf'kZr djus ls iwoZ lsokjr esa viMsV (Update) dj fn;k tk;sxkA viMsV djus ds mijkUr lsokjr vH;FkhZ ds jftLVMZ eksckbZy uacj ij iqu% viMsVsM jftLVªs'ku fLyi izkIr djus laca/kh lwpuk nh tk;sxhA ,sls lsokjr vH;FkhZ vius Candidate login ds ek/;e ls viuk viMsVsM jftLVªs'ku fLyi tujsV dj ysaA lapkyd fpfdRlk f'k{kk e/; izns'k
26. The definition of 'in-service candidate' as per Admission Rules is reproduced as under :-
¼?k½ ^lsokjr vH;FkhZ* ls vfHkizsr gS] e/;izns'k ljdkj ds v/khu fdlh foHkkx vFkok laLFkk esa fu;fer vFkok lafonk lsok esa dk;Zjr vH;FkhZ ftlus fu;ksDrk ls vukifRr izkIr djus ds i'pkr~ izos'k gsrq iksVZy ij iath;u djk;k gks % -: 11 :- W.P. No.3138 of 2022
27. Rules 6 relates to registration, which reads thus :
6- iath;u]& p;u ijh{kk esa mRrh.kZ vH;FkhZ dks iksVZy ij vko';d tkudkjh nsrs gq, fofufnZ"V le;&lhek ds Hkhrj iath;u djkuk gksxkA vH;FkhZ dks iath;u ds fy, vko';d leLr tkudkjh iksVZy ij] iath;u ds izi= esa miyC/k djkuk gksxhA tkudkjh viw.kZ gksus dh n'kk esa iath;u ugah gks ldsxkA iath;u i'pkr~ iath;u esa nh xbZ tkudkjh esa ifjorZu] la'kks/ku vFkok vfrfjDr tkudkjh iznk; vFkok Lohdkj ugha dh tk,xhA
28. The relevant portion of Rule 14 of Admission Rules on which both the parties placed reliance is as under :-
14- lsokjr vH;FkhZ ds fy, izksRlkgu]&
¼1½ ----------------------------------------------------------------------------------------------
¼2½ ----------------------------------------------------------------------------------------------
¼3½ ----------------------------------------------------------------------------------------------
¼4½ fu;ksDrk ls vukifRr izkIr djus ds i'pkr
iksVZy ij iath;u djus okys lsokjr vH;FkhZ dks
esfMdy dkmafly vkWQ bf.M;k (MCI)@MsUVy
dkmafly vkWQ bf.M;k (DCI) }kjk le;≤ ij
fofufnZ"V vf/kekU; vad nsrs gq, izos'k gsrq vkcaVu ds fy, mudk ijLij ojh;rk Øe fu;r fd;k tk,xkA ¼5½ lsokjr fpfdRlksa dks vukifRr izek.k&i= tkjh djus dh 'krZ] ik=rk ,oa p;u vkfn ds ekin.M e/;izns'k 'kklu dk yksd LokLF; ,oa ifjokj dY;k.k foHkkx le;≤ ij fu/kkZfjr dj ldsxk ftls iksVZy ij iznf'kZr fd;k tk,xkA
29. The plain reading of notice dated 12.10.2021 shows that in-service candidates were required to get themselves registered between 11.10.2021 to -: 12 :- W.P. No.3138 of 2022 17.10.2021. In the pleadings of the writ petition, petitioner has nowhere pleaded that she got herself registered within the said period mentioned in the notice dated 12.10.2021. On the contrary, petitioner's representation dated 20.1.2022 (Annexure P/22) and another representation dated 24.1.2022 filed along with I.A. No.1575/2022 shows that she got herself registered for DME Counselling on 18th October, 2021 and sent her form 8 and 8-A on 20.1.2022 only. It is thus, crystal clear that petitioner did not get herself registered even as per 'open category' candidate as per notice dated 12.10.2021 between 11.10.2021 to 17.10.2021. She did not raise any objection when the tentative list of 'in-service candidates' was issued which did not contain her name.
30. The petitioner preferred a representation on 20.1.2022 for inclusion of her name. The requisite form 8 and 8-A were also submitted on 20.1.2022. The letter dated 29.9.2021 (Annexure AR/1) makes it clear that the medical officers who have furnished requisite information in form 8 and 8-A within stipulated time would be entitled for incentive marks. The petitioner, admittedly did not get herself registered and furnished form 8 and 8-A within stipulated time.
31. The definition of 'in-service candidate' is clear and unambiguous. Only such working employee who has obtained no objection from the employer and thereafter got himself/ herself registered in the portal can be treated as 'in-service candidate'. This is trite that when language of statute is clear and unambiguous, it has to be given effect to irrespective of consequences. [See: Nelson Motis Vs. Union Of India and another 1992 (4) SCC 711 which is recently followed in P. Gopalkrishnan alias Dileep -: 13 :- W.P. No.3138 of 2022 Vs. State of Kerala and another 2020 (9) SCC 161].
32. The procedure of registration finds place in rule 6 of the Admission Rules. For the purpose of registration, the passed candidate needs to get herself registered within prescribed time limit. The necessary information for registration in proper format needs to be furnished failing which registration is impermissible. A conjoint reading of definition of 'in-service candidate' and Rule 6 i.e. 'registration' leaves no room for any doubt that in absence of registration after obtaining NOC and without furnishing requisite information in proper format petitioner cannot treat herself to be 'in-service candidate'. The petitioner having failed to register herself as 'in-service candidate' within stipulated time with correct information, cannot take advantage of her own wrong. It will not be proper to upset a selection process midway and put the clock back for a candidate who did not comply with the requirement of admission rules.
33. So far the proposition 'A' and 'B' raised by petitioner are concerned, it is apposite to note that in Charles K. Skaria and others (Supra) on which mainly propositions are based, a notification inviting application was published by State of Kerala in the Gazette on 2nd February, 1979 wherein the last date for receipt of application was set down as 31 st March, 1979. The candidate therein preferred the requisite application within the stipulated time mentioned hereinabove but did not provide the proof of having obtained a diploma along with the candidature. In this backdrop, the Apex Court opined that if candidates secured a diploma before the last date of submission of candidature, it is prudent to produce evidence of diploma along with the application but i.e. secondary. Relaxation of the date on the -: 14 :- W.P. No.3138 of 2022 first, is impermissible and illegal but diploma certificate can be produced later-on i.e. before the date of actual selection.
34. In our consider opinion, even as per judgment of Charles K. Skaria and others (Supra), the application/candidature was required to be submitted before the cut-off date. The said judgment is not an authority on the proposition that registration not made as per admission rules within the stipulated time will bestow any right to the candidate to get herself registered as 'in-service candidate' at a later point of time after the cut-off date. Needless to emphasize that both the propositions based on the judgment of Charles K. Skaria and others (Supra) and other judgments will not cut any ice because no judgment cited by Shri Siddharth Radhe Lal Gupta, Advocate lays down the principle that candidature should be accepted even when it was not submitted within stipulated time before cut-off date with requisite documents as per the rules. Thus, judgments cited by the Siddharth Radhe Lal Gupta, Advocate cannot be pressed into service in the factual matrix of this matter.
35. We find substance in the argument of Smt. Janhvi Pandit, Deputy Advocate General that if statute prescribes a thing to be done in a particular manner, it has to be done in the same manner and other methods are unknown to law. A Division Bench of this Court has recently followed the ratio decidendi of the judgments cited by the State in 2021 (3) MPLJ (Cri), 93 (Vishal D. Remeteke Vs. State of M.P. and others). For this reason also, no relief is due to the petitioner who did not register herself within stipulated time and did not furnish requisite information in prescribed formats as per Admission Rules within the said time limit. -: 15 :- W.P. No.3138 of 2022
36. In view of the foregoing analysis, no case is made for interference in this petition under Article 226 of the constitution. The administration has acted in consonance with the Admission Rules.
37. Thus, interference is declined and this petition is dismissed. No cost.
(SUJOY PAUL) (DWARKA DHISH BANSAL)
JUDGE JUDGE
bks/Ahd
-: 16 :-
W.P. No.3138 of 2022
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
WRIT PETITION No. 3138 of 2022
Dr. Rajni Shende,
-Versus-
State of Madhya Pradesh & others
**********
ORDER FOR CONSIDERATION
(SUJOY PAUL)
JUDGE
/03/2022
( DWARKA DHISH BANSAL)
JUDGE
03/2022
POST FOR: /03/2022
(SUJOY PAUL)
JUDGE
/03/2022
Signature Not Verified
SAN
Digitally signed by MOHD AHMAD
Date: 2022.03.16 14:42:04 IST