Bombay High Court
Dr. Suryakant Tejrao Lodhe And Ors vs The State Of Maharashtra Thr Its Dept Of ... on 24 January, 2022
Author: Amit Borkar
Bench: Nitin Jamdar, Amit Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 7855 OF 2021
Dr. Suryakant Tejrao Lodhe & Others ... Petitioners.
V/s.
The State of Maharashtra, through its
Department of Medical Education of
Drugs & Others ... Respondents.
Mr. V. M. Thorat for the Petitioner.
Mr. A. A. Kumbhakoni, Advocate General a/w. Mr. P. P. Kakade,
Government Pleader & Mrs. S. S. Bhende, Additional Government
Pleader for the Respondent-State.
CORAM : NITIN JAMDAR AND
AMIT BORKAR, JJ.
DATE : 24 JANUARY 2022.
(Through Video Conferencing)
P. C. :
On 18 January 2022 the following order was passed:
"On 13 January 2022 the following order was passed in this petition:
" By this petition, the Petitioners are seeking a direction to the State of Maharashtra to provide for seats in favour of in service candidates in the 2021- 2022 Post Graduate Medical Posts. The learned Counsel for the Petitioners states that, as per his instructions, a meeting was held to revive such seat allocation as was existing prior to 2017 and it has been decided the same should be provided.
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2. The Petitioners have placed on record the minutes of the meeting dated 30 September 2021 which, according to the Petitioners, shows that decision is already taken in favour of the Petitioners and it is only to be implemented.
3. The learned AGP seeks time to take instructions in light of the documents now placed on record.
4. Stand over to 18 January 2022. "
2. The learned AGP states that instructions have been received from the Medical Education and Drugs Department of the State Government that it may not be possible to provide for such quota and seeks time to file reply.
3. The learned counsel for the Petitioner has drawn our attention to the order passed on 31 March 2021 and 17 June 2021 in Writ Petition No.4772 of 2021. The learned counsel for the Petitioner has also placed on record the decision of the Constitution Bench in Tamil Nadu Medical Officers Association and Ors. vs. Union of India and Others1 wherein in paragraph 95 thereof the Apex Court observed thus:
"95. There is no bar in Regulation 9 of the 2000 Regulations as it prevailed on 15/2/2012 and subsequently amended on 5/1/2018 on individual States in providing for reservation of in-service doctors for admission into postgraduate medical degree courses. But to take benefit of such separate entry channel, the aspiring in-service doctors must clear NEET examination with the minimum Digitally signed by RAJESHWARI RAJESHWARI SUBODH SUBODH KARVE prescribed marks as stipulated in the 2000 Regulations."
KARVE Date:
2022.01.25
16:21:33 +0530
1(2021) 6 Supreme Court Cases 568
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4. The learned counsel for the Petitioner submits that in-service quota was provided earlier and in a decision rendered in State of U. P. vs. Dinesh Singh Chauhan2 since it is held that such reservation would be illegal, the State of Maharashtra has discontinued the same. He submits that the Constitution Bench has not approved the decision in Dinesh Singh (cited supra) and has clarified that there is no impediment to provide for in-service quota and the State Government to restore the same. The Constitution Bench has also referred to the obligation of the State to provide for in-service quota is in the discharge of its positive constitutional obligation to provide better healthcare facilities for its citizens by upgrading the qualification of the existing in-service doctors.
5. As we note from the order passed in Writ Petition No. 4772 of 2021 the issue is pending in this court for almost a year and yet no decision on the same has been taken. In the light of this decision and the fact that process of filling the seats is already under way, while deferring the hearing of the petition to 24 January 2022, we expect the learned Advocate General to appear in this petition, as an element of policy decision on behalf of the State is also involved. We direct that the concerned officers will keep the necessary record ready and instruct learned Advocate General in advance."
2. The learned Advocate General has appeared pursuant to the order. The learned Advocate General states that the process of admission for this academic year is substantially advanced, and it will not be practicable to alter the same and provide for in-service quota for this academic year. The learned counsel for the Petitioner 2(2016) 9 Supreme Court Cases 749 rsk 4 23-aswp7855-2021-F.doc contends that the Constitution Bench has rendered its decision on 31 August 2020 and the issue of providing for in-service quota has been pending in this Court for almost more than a year, and yet no decision is taken, and therefore the petition should not be adjourned for a longer duration.
3. The Learned Advocate General has placed before us a communication dated 6 September 2021 issued by the Medical Department wherein it is opined that instead of in-service quota, incentive marks up to 30% should be provided to the candidates. On the other hand, the learned counsel for the Petitioner states the Health Department of the State has taken a contrary view, and according to the Health Department, the in-service quota would be beneficial from the public health perspective. The learned Advocate General acknowledges that there is a difference in the stand of the Public Health Department and the Medical Education Department of the State on this issue. The learned counsel for the Petitioner also points that the incentive marks now projected by the Medical Education Department as a substitute for the in-service quota were already present and is not a new factor.
4. The Constitution Bench has emphasized the right to health care and the obligation of the State to provide the same in tribal and difficult areas of the State. The Petitioners have contended that the State Government had provided this quota pursuant to the rsk 5 23-aswp7855-2021-F.doc obligation and objective and it was discontinued only because of the law declared by the Supreme Court in Dinesh Singh Chauhan and not because of any change in the policy of the State Government. Therefore if the in-service quota is not being continued (after the decision of the Constitution Bench), considering the object behind providing the quota, the State will place before us cogent reason why it does not intend to do so. A reply affidavit in this regard is necessary.
5. We also note that this Court is seized of various Public Interest Litigations raising the issue of lack of health care in tribal areas of the State wherein various directives have been issued after noticing the shortage of skilled doctors in these areas of the State. The State Government has also filed several affidavits. The learned Advocate General states that the gist of the stand taken by the States in these petitions be placed before this Court by way of an affidavit on the next date.
6. Stand over to 1 February 2022.
(AMIT BORKAR, J.) (NITIN JAMDAR, J.)