Rajasthan High Court - Jaipur
Dr. Kamlendra Singh Chaudhary S/O Shri ... vs State Of Rajasthan on 15 March, 2019
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.4765/2019
1. Dr. Kamlendra Singh Chaudhary S/o Shri Om
Prakash Chaudhary, Aged About 29 Years, R/o F-22,
Resident Doctor Hostel, S.m.s. Medical College,
Jaipur
2. Dr. Utkarsh Sharma S/o Shri Ashok K. Sharma,
Aged About 22 Years, R/o C-93, Mother Teresa
Nagar, Bypass Malviya Nagar, Gettore Road, Jaipur-
302017
3. Dr Shivani Mathur, D/o Shri Suresh Dutta Mathur,
Aged About 24 Years, R/o C-132 Mangal Marg, Bapu
Nagar, Jaipur-302015
----Petitioners
Versus
1. State Of Rajasthan, Through Its Principal Secretary,
Department Of Medical And Health, Secretariat,
Jaipur.
2. NEET PG Medical And Dental Admission/ Counseling
Board -2019 And Principal And Controller, SMC
Medical College And Attached Hospitals, Jaipur, SMS
Medical College, JLN Marg, Jaipur Through Its
Chairman
3. Dr. Mahesh Swami S/o Shri Surja Ram Swami, Aged
about 29 years, R/o VPO Taskola, Via Pawata,
Kotputli, District Jaipur (Rajasthan)
4. Dr. Sunil Kumar Garhwal S/o Shri Ganpatram
Garhwal, aged about 29 years, R/o Garhwal
Bhawan, Indra Colony, Ward No. 15, Tehsil Chomu,
District Jaipur
5. Dr. Pooja D/o Shri Dr. Blaveer Garhwal, aged about
30 years, R/o Near Gurukripa Hospital, Jat Colony,
Sikar, Rajasthan.
6. Dr. Sonia Arya W/o Shri Dr. Amit Jhakhar, Aged
(2 of 66) [CW-4765/2019]
about 30 years, R/o Plot No 70-71, Kailash Nagar,
Shiv Singhpura, Sikar (Rajasthan)
----Respondents
For Petitioner(s) : Mr. Rajendra Prasad, Sr. Counsel with Mr. Kushagra Sharma, Ms. Purvi Mathur and Mr. Sahir Hussain For Respondent(s) : Mr. M.S. Singhvi, Advocate General with Mr. Raunak Singhvi Mr. Ashwini Jaiman, Mr. Vigyan Shah, Mr. Rajaram Choudhary HON'BLE MR. JUSTICE ALOK SHARMA Order Date of Order :: 15th March, 2019 Admission to Post Graduate (Medical) course in various branches are governed by the Post Graduate Medical Education Regulations, 2000 (hereafter 'the Regulations of 2000'), as amended from time to time. They are a complete code in themselves.
(3 of 66) [CW-4765/2019]
2. Regulation 9(IV) of the Regulations of 2000 effective 5.4.2018 which is relevant to adjudicate the issue agitated in this petition reads as under:-
"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 well as State-wise merit list of eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-
Entrance Test and candidates shall be admitted to Post-graduate 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 (4 of 66) [CW-4765/2019] 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 the State Government / Competent authority from time to time."
3. The case of the petitioners as argued by Shri Rajendra Prasad, Senior Counsel, with Mr. Kushagra Sharma and Ms. Purvi Mathur is that they passed MBBS and are qualified to seek admission in Post Graduate (Medical) courses. For this purpose they participated in the National Eligibility Entrance Test 2019 (NEET PG 2019) and have passed therein but their overall merit relevant to the choice of College and branch in PG (Medical) will however be determined after adding of bonus marks as an incentive (5 of 66) [CW-4765/2019] under Regulation 9(IV) of the Regulations of 2000 to candidates who subsequent to having graduated in Medicine (MBBS) have served three years as regular employees with the government / public authority (in-service candidates) in difficult and / or remote or Rural areas. It has been submitted that however the incentive of bonus marks over the NEET PG 2019 marks to in-service candidates under the proviso to Regulation 9 (IV) for determining their merit can only be permissible and legally sustainable if the State Government / competent authority had notified difficult and / or remote or rural areas afresh following the amendment of 5.4.2018 to the proviso to Regulation 9 (IV) of the Regulations of 2000 after identification with reference to the criterion laid by the Apex Court in its various judgments. No (6 of 66) [CW-4765/2019] such identification has been done or notification has been issued by the State Government and its reliance as the earlier notification dated 28.02.2018 relating only to identifying remote and / or difficult areas prior to the amendment of 05.04.2018 is of no avail.
4. Mr. Rajendra Prasad submitted that the earlier notification dated 28.02.2018 was in the context of the unamended proviso to regulation 9 (IV) of the Regulations of 2000 which was materially different from the one as now stands after the amendment of 05.04.2018 and consequently different considerations in consonance therewith were to inform the State Government in exercising its discretion to incentivize in-service doctors in (7 of 66) [CW-4765/2019] the course of PG (Medical) admissions in the State. Mr. Rajendra Prasad submitted that prior to the amendment of 05.04.2018, 10% of the NEET PG 2019 exam marks -
without variation - were to be provided in case the in-
service doctors had served in remote/ difficult areas notified by the State Government for each year of service with the State upto a maximum of 30%. In that state of the unamended proviso to Regulation 9(IV) service in notified remote and / or difficult areas beyond three years was redundant and not reckoned for - the sacrifice in public service for the period subsequent to three years being unrecognized and wasted. Contra- distinguished to the above, following the amendment of the proviso to Regulation 9(IV) of the Regulations of 2000 on 5.4.2018 the (8 of 66) [CW-4765/2019] State has been conferred a discretion to determine upto 10% bonus marks as incentive for each year of service in remote/ difficult areas and additionally or for "rural areas".
This amended provision requires application of mind to the weightage of incentive to be given to in-service doctors over several years till the percentage reaches 30% of the marks of in-service doctors at NEET PG. Those with longer service in remote / difficult or rural areas duly identified and notified would stand benefited vis a vis those with lesser periods of such service. This weightage to assess the element of sacrifice of such doctors in public service has to be dependent on multiple considerations as enunciated by the Apex Court in the case of State of Haryana & Anr.
Versus Dr. Narender Soni & Ors. (AIR 2017 SC 2892) and (9 of 66) [CW-4765/2019] State of Uttar Pradesh & Ors. Versus Dinesh Singh Chauhan [(2016) 9 SCC 749] as also Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. (SLP No. 11692/2017 decided on 15.12.2017). Thus a fresh identification and notification on the issue of bonus marks as incentive for admission to PG Medical Courses was required moreso subsequent to the inclusion of "rural areas" following the amendment of 5.4.2018 to the proviso to Regulation 9(IV) of the Regulations of 2000. Mr. Rajendra Prasad submitted that the degree of difficulty and remoteness of postings as Medical Officers / Surgeons in the service of the State / public authority in different areas of Rajasthan -
geographically the largest State in the country - cannot be equated. Different weightages with reference to the degree (10 of 66) [CW-4765/2019] of difficulty qua remote / difficult / rural areas in the State has to reflect in the exercise of discretion by the Government / competent authority after the amendment of 5.4.2018 to the proviso to Regulation 9(IV) of the Regulations of 2000. It was incumbent upon the State Government to consider this aspect of the matter. That has not been done and hence its discretion under the proviso to Regulation 9(IV) of the Regulations of 2000 if exercised without application of mind to relevant factors is vitiated.
This Mr. Rajendra Prasad submitted can be best understood if examples of service rendered by in-service doctors in rural area which the State government may have deemed fit for grant of incentive marks is considered. Mr. Rajendra Prasad cited the village of Bhonawas in Jaipur district which (11 of 66) [CW-4765/2019] is situated roughly 94 kms from Jaipur, 24 kms from Kotputli, a bustling town, and only 5 kms away from the Delhi-Jaipur national highway. He submitted that the service rendered by an in-service doctor in Bhonwas - a rural area cannot be and should not be equated with the service rendered by an in-service doctor in a difficult area like Maal Dungarpur - also a rural area where there are no roads, no uninterrupted power supply, and an extremely difficult and hostile environment. If the State government grants equal marks to in-service doctors in the two wholly different areas, it would be treating unequals as equals and there would be no real incentive for any doctor to go and serve in a far of rural, or remote or difficult area as they would get the same bonus marks as incentive under the proviso to (12 of 66) [CW-4765/2019] Regulation 9(IV) with a far lower level of sacrifice entailed in a posting at Bhonwas vis a vis one at Maal Dungapur.
This would essentially defeat the very purpose and intention behind providing incentive marks to the in-service doctors upto 10% per year and not mandatorily 10% per year.
That cannot have been the objective of the MCI, Sr. Counsel submitted.
5. Mr.Rajendra Prasad, then submitted that albeit in this view of the arguments advanced, no incentive at all can be permissible to in-service doctors either in remote / difficult / rural areas for ranking them / ascertaining their merit for admission to PG Medical Courses by resort to the proviso to Regulation 9(IV) of the Regulations of 2000, the (13 of 66) [CW-4765/2019] petitioners are advised to limit their prayer to the illegality of grant of incentive in issue to those who have purportedly served in "rural areas" reckoned only on the basis of definition of "rural areas" under the Rajasthan Medical and Health Service Rules of 1963 as amended from time to time and payment of rural allowance. This as more particularly because the State at no point of time including prior to 5.4.2018 even ascertained their entitlement to bonus marks as incentive under proviso to Regulation 9(IV) of the Regulations of 2000 with reference to the parameters laid down by the Apex Court for grant of such bonus marks as incentive to in-service candidates for admission into PG Medical Courses. The absence of any exercise at all by the State in identifying 'rural areas' in terms of the Apex Court's (14 of 66) [CW-4765/2019] judgments for the purpose of incentive under Regulation 9 (IV) has been emphasized and to buttress the submission, reference was made by Mr. Rajendra Prasad to the reply of the official respondent before the Court where for the purpose of ascertaining "rural areas" reliance has been placed on the list notified on 28.2.2018 under Regulation 9(IV) as existing prior to the amendment of 5.4.2018.
6. Mr.Rajendra Prasad further submitted that the respondents seek to found their identification of rural areas for grant of bonus marks as incentive to in-service candidates under the Regulation 9(IV) aside of Rule 22-A of the Rules of 1963 also on the Rajasthan Civil Service (Pension) Rules, 2008. This issue, whether the criterion of (15 of 66) [CW-4765/2019] transfer and posting and allowances paid under the State's extant service rules applicable to in-service doctors can be applied for grant of admission to medical colleges in PG Courses came up for consideration of the Apex Court in the case of State of Haryana & Ors. Versus Narendra Soni and such criterion was negatived, submitted Mr. Rajendra Prasad.
7. Mr.Rajendra Prasad also emphatically submitted that the incentive to in-service candidates is in the nature of an exception to the general rule under the Regulations of 2000 of merit at a common examination being determinative for admission to PG medical courses. For grant of such incentive, which chips away at the merit of (16 of 66) [CW-4765/2019] candidates otherwise eligible and more meritorious, but not in service, the Madras High Court has emphasized in the context of the proviso to Regulation 9(IV) in issue, the necessity of having an expert committee to determine the extent and weightage of the incentives to be given to in-
service doctor candidates writing the NEET PG examination for PG (medical) admission.
8. Para 39 of the State of Tamil Nadu Versus Dr. P. Pravin - 2018 (5) MLJ 791 has been referred to by Mr. Rajendra Prasad and is reproduced as under:
"39. Before parting with these appeals, we also take note of certain concerned reservations expressed by the parties and the manner in which the areas identified by the Committee disregarding certain directions issued by the (17 of 66) [CW-4765/2019] Hon'ble Supreme Court of India. In each time of such identification and categorization takes place, it is always put to challenge by the aggrieved section who were omitted to be included or section which is held not entitled and the admission process gets completely derailed every academic year. In such event, the Courts are forced to pass orders more on the basis of expediency only to protect the interest of the public at large. In order to avoid such recurrence in future towards categorization of Doctors who are employed in remote, difficult and rural areas for the purpose of benefit of additional weightage as envisaged in proviso to Sub-clause IV of Regulation 9, it is suggested that the Committee of experts may be headed by a retired Judge of the High Court. This is more so, when repeatedly such identification or categorization is put to challenge in the legal forum, so that the experts who are part of the Committee, will have the benefit of legal acumen from the Judge concerned while making the recommendations for identifying the areas in tune with the proviso to Sub-clause IV of Regulation 9 and also in line (18 of 66) [CW-4765/2019] with the directions of the Hon'ble Supreme Court of India and other High Courts. We do hope that the Government bear this in mind while constituting any further Committee/s for future academic years in respect of admissions to Post Graduate Degree / Diploma courses."
9. Mr. Rajendra Prasad further submitted that pursuant to the above order a committee was set up which not only just identified remote and/or difficult or rural areas but also ascertained the quantum of incentives to be given to the in-service candidates with reference to their sacrifice determinable from their postings in difficult / remote / rural areas. Varying extent of incentives to those statutorily entitled is to be given in view of the fact that the extant proviso to Regulation 9(IV) of the Regulations of 2000 does not mandate year to year to in-service doctors, any definite (19 of 66) [CW-4765/2019] percentages of marks as incentive over the raw marks obtained by them at the NEET PG Examination but leaves the percentage (albeit with an upper limit of 30%) of incentive over NEET PG marks to be determined with due application of mind by the State Government/ competent authority. The recommendation of the committee so constituted was notified vide the relevant Government's order dated 06/03/2019. On the submissions above made, Mr.Rajendra Prasad prayed that the State through the Principal Secretary, Medical be directed to form a committee of experts for the purpose of identifying rural areas in tune with the various pronouncements of Hon'ble Supreme Court to ascertain the element of sacrifice by in-service doctors posted there for grant of bonus marks over NEET PG 2019 (20 of 66) [CW-4765/2019] marks as an incentive for admission to PG (Medical) Courses.
10. The respondent State has filed its reply opposing the petition. As a preliminary objection Mr. M.S. Singhvi, Advocate General appearing with Mr. Raunak Singhvi submitted that the petitioners have no locus-standi to agitate this petition inasmuch as they are not in-service candidates and not concerned with the issue of bonus marks. The grant of bonus marks to an in-service candidate under the proviso to the Regulation 9(IV) does not in any manner affect the petitioners' rights and it has even not been so pleaded. In support of his contention that the writ petition is liable to be dismissed as the petitioners are (21 of 66) [CW-4765/2019] lacking in locus standi, Mr. M.S. Singhvi relied upon the judgments of the Apex Court in the case of Kumari Chitra Ghosh and others Versus Union of India and others {AIR 1970 SC 35}, N.C. Singhal Versus Union of India and others {AIR 1980 SC 1255} and Shobha Suresh Jumani Versus Appellate Tribunal, Forfeited Property and others {2001 (5) SCC 755}.
11. Another preliminary objection set up by Mr. M.S. Singhvi is that as neither any challenge to the Notification dated 28.2.2018 relating to grant of bonus marks as incentive to in-service candidates who have worked in identified and notified remote / difficult / rural areas for admission to PG Medical courses issued under the (22 of 66) [CW-4765/2019] Regulation 9(IV) of the Regulations of 2000 has been made nor a challenge to the Notification dated 28.4.2017 whereby the term "Rural Area" was defined under the Rajasthan Medical and Health Service Rules, 1963 (hereafter 'the Rules of 1963') has been laid, the petition has to fail at the outset without its merits being addressed. Mr. M.S. Singhvi submitted that the award of bonus marks as incentive to in-
service candidates is consequent to these Notifications and till the aforesaid Notifications stand, as they will, no challenge thereto being laid, the relief prayed for in the petition either in the whole or even truncated cannot be granted to the petitioners. In support of his contention, Mr. M.S. Singhvi placed reliance on the judgment of the Apex Court in the case of 2003 (5) SCC 669 (para 38).
(23 of 66) [CW-4765/2019] 12. The third preliminary objection to the
maintainability of the petition advanced by Mr. M.S. Singhvi is that the issue agitated in this petition even otherwise stands concluded under the directions of the Division Bench of this Court in D.B. Special Appeal (Writ) No. 501/2018 -
State of Rajasthan Versus Dr. Ajeet Bagra and others, wherein it was directed that effective 5.4.2018 i.e. the date of the amendment of Regulation 9(IV) of the Regulations of 2000, the Government was permitted to fill up the seats in PG (Medical) by awarding bonus marks as incentive to in-
service candidates who had worked in rural areas identified under the Rules of 1963 and where rural allowance was payable. And a SLP thereagainst was dismissed. Mr. M.S. (24 of 66) [CW-4765/2019] Singhvi submitted that this Court sitting singly is bound by the judgment aforesaid of the Division Bench and cannot hold to the contrary. It was submitted that following the D.B.'s order in D.B. Special Appeal (Writ) No. 501/2018 in the case of State of Rajasthan Versus Dr. Ajeet Bagra & Ors., in the second round of counselling for admission to PG Medical courses for the academic session 2018-19 those from rural areas as defined following the Notification dated 28.4.2017 under the Rules of 1963 were given bonus marks as incentive for determination of their merit for admission to PG (medical) course and admitted thereon. In-fact prior to the conferment of the aforesaid benefit to in-service candidates posted at CHCs/ PHCs in the relevant rural areas, objections were invited but no plausible objection (25 of 66) [CW-4765/2019] thereto having been received, the list was finalized and acted upon. In this view of the matter, a challenge to grant of bonus marks as incentive to in-service candidates posted in such rural areas cannot be entertained submitted Mr. M.S. Singhvi.
13. The fourth and final preliminary objection agitated by Mr. M.S. Singhvi is that the PG Medical counselling for allotment of seats for the academic session 2019-20 is scheduled to be held commencing 25.3.2019 and in the event the court were to allow the petitions as prayed for and direct constitution of an expert Committee for identification of the remote, difficult and rural areas with reference to the Regulation 9(IV) of the Regulations of (26 of 66) [CW-4765/2019] 2000, following the amendment of 5.4.2018, it would "totally disturb" the schedule of counselling and fly in the face of the Regulations of the Medical Council of India which determines the calendar for admissions into PG courses for medical and has been approved by the Apex Court in multiple cases occasions beginning with Mridul Dhar Versus Union of India {2005 (2) SCC 65}.
14. On the merits of the case, Mr. M.S. Singhvi's submission is that the objective criterion for identifying difficult / remote areas to which in-service candidates are posted in various States as provided for in terms of the judgment of the Apex Court in the case of State of Haryana & Anr. Versus Dr. Narender Soni & Ors. (supra) and State of (27 of 66) [CW-4765/2019] Uttar Pradesh & Ors. Versus Dinesh Singh Chauhan (supra) as also Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. (supra) are not of relevant to the identification of "rural areas" and the State is always free and as it has done, to identify rural areas for the purpose of grant of bonus marks to in-service candidates at the NEET PG on the basis of another independent criterion. That in the instant cases is that those in-service candidates who served in areas which entitled them to a rural allowance would be entitled to bonus marks as an incentive to ascertain their merit at NEET PG 2019 for admission into PG Medical courses. Aside of the aforesaid, Mr.M.S. Singhvi submitted that the language of even the extant proviso to Regulation 9(IV) speaks of notification thereunder notifying remote and / or (28 of 66) [CW-4765/2019] difficult or rural areas from time to time. He submitted that the words "time to time" would include a time prior to the amendment of the proviso to Regulation 9(IV) of the Regulations of 2000 on 5.4.2018. And hence would cover the notification dated 28.2.2018 identifying remote and / or difficult or rural areas.
15. Reply to the petition has also been filed by the impleaded private respondents no. 3 to 6. Their counsel Mr. Ashwini Jaiman and counsel for the interveners Mr. Vigyan Shah aside of adopting the preliminary objections to the maintainability of the petition as agitated by the learned Advocate General, also submitted that the Notification dated 28.2.2018 even though issued prior to the substantial (29 of 66) [CW-4765/2019] amendment of Regulation 9(IV) of the Regulations of 2000 on 5.4.2018 suffices for the purposes of identification of remote, difficult and rural areas even in respect to Regulation 9(IV) subsequent to the amendment dated 5.4.2018 even it entailed substantial change in the manner of grant of bonus marks as incentive to in-service candidates for admission in PG Medical courses. Both counsel submitted that the aforesaid Notification dated 28.2.2018 defines remote and / or difficult areas under the Regulation 9(IV) in consonance with the parameters laid down by the Apex Court in its judgment State of Haryana & Anr. Versus Dr. Narender Soni & Ors. (supra) and State of Uttar Pradesh & Ors. Versus Dinesh Singh Chauhan (supra) as also Dr. Amit Bagra & Ors. Versus State of Rajasthan & (30 of 66) [CW-4765/2019] Ors. (supra) and was in-fact so concluded by this very court in S.B. Civil Writ Petition No. 5255/2018 - Dr. Ajeet Bagra and Another Versus Union of India & Ors. decided on 20.3.2018. Nothing therefore survives for the petitioners to challenge the identification / notification of remote and / or difficult areas under the now extant proviso to Regulation 9(IV) of the Regulations of 2000. Counsel submitted that the Committee constituted at the relevnat time before 28.2.2018 by the State Government for identifying remote and / or difficult areas also had evolved the criteria for identifying the rural areas with reference to Rule 22-A of the Rules of 1963 as also the Finance Department Notification dated 26.12.2011 for grant of bonus marks as incentive to in-service candidates. From a conjoint reading (31 of 66) [CW-4765/2019] of the two, i.e. Rule 22-A of the Rules of 1963 and notification dated 26.12.2011 "rural areas" in the proviso to Regulation 9(IV) has to be construed as including CHCs and PHCs where the Doctors in service were entitled to rural allowance in view of being posted outside the Municipal limits, Tehsil Headquarters or even Tehsil Headquarter with a population of less than 5000 people.
Counsel submitted that albeit this Court vide its order dated 20.3.2018 in S.B. Civil Writ Petition No. 5255/2018 has upheld the challenge in the petition to the inclusion of services by in-service doctors in "rural areas" on the ground that the term "rural areas" was at the relevant time not included in the proviso to Regulation 9(IV), on a challenge to the Court's order on that count the Division Bench taking (32 of 66) [CW-4765/2019] note of subsequent amendment to the Regulation 9(IV) of the Regulations of 2000 effective 5.4.2018 held that the benefit of service in rural areas as determined by the State Government on the strength of Rule 22-A of the Rules of 1963 and the Finance Department Notification dated 26.12.2011 could be granted to in-service candidates by way of bonus marks as incentive for the purpose of admission to PG (Medical) courses subsequent to 5.4.2018.
In-fact, submitted counsel, admission was so granted to in-
service candidates in PG medical courses for academic session 2018-19 also reckoning after 5.4.2018 for their "rural service" and entitlement for bonus marks as incentive for services discharged in such areas where rural allowance was payable. Both counsel submitted that the mere (33 of 66) [CW-4765/2019] amendment of Regulation 9(IV) of the Regulations of 2000 effective 5.4.2018 did not in the circumstances entail the requirement of a fresh Notification after the purported requisite enquiries for identification of difficult and / or remote or rural areas, such an exercise would be wholly redundant and merely mechanical.
16. Heard. Considered.
17. With regard to the objections as to the locus standi of the petitioners to lay this petition, an objection was similarly raised but negatived by a detailed reasoning in the case of Dr. Ajeet Bagra & Anr. Versus Union of India and others - S.B. Civil Writ Petition No. 5255/2018; decided on 20.3.2018. It was held that where the petitioners alleged (34 of 66) [CW-4765/2019] that grant of bonus marks as incentive for PG medical admissions under the then extant proviso to Regulation 9(IV) of the Regulations of 2000, was a colourable exercise of power to their detriment, and affected them in the drawing of merit list for admission in PG Medical on the basis of NEET PG examination, they certainly had a right to challenge the manner of grant of incentive on the allegation of it being ultra-vires the concerned provision. It cannot be disputed that the same situation obtains in the present case and the case of the petitioners again is that the illegal exercise of power by the State Government for the purposes of grant of bonus marks to in-service candidates adversely affects their rights of admission in PG Medical courses. The judgments relied by Mr.M.S. Singhvi on this (35 of 66) [CW-4765/2019] issue, turned on their own facts and are not apposite and applicable to the facts of the present case. I am of the considered view that in the event of illegal grant of bonus marks as incentive to in-service candidates without identification of remote/ difficult/ rural areas with reference to objective criterion laid by the Apex Court, the right of the petitioners to admission to a PG (Medical) courses of their choice would be adversely affected. The petitioners are thus "aggrieved persons" and the petition at their instance maintainable. The objection of the learned Advocate General as to the petitioners' lacking locus standi is liable to be dismissed. So it is.
(36 of 66) [CW-4765/2019]
18. I am also of the considered view that the preliminary objection with regard to the petition being liable to be dismissed at the threshold on the ground that neither a challenge to the Notification dated 28.2.2018 relating to grant of bonus marks to in-service candidates under the unamended proviso to Regulation 9(IV) of the Regulations of 2000 nor a challenge to the Notification dated 28.4.2017 whereby the term "rural areas" was defined under the Rules of 1963 is without merit. For one, the Notification dated 28.2.2018 was issued on the strength of the then extant proviso to Regulation 9(IV) of the Regulations of 2000 as obtaining prior to the amendment of 5.4.2018. Following the amendment dated 5.4.2018, to the proviso to Regulation 9(IV) of the Regulations of 2000, the criterion (37 of 66) [CW-4765/2019] and manner of grant of incentive have been clearly altered.
The notification dated 28.2.2018 predating the amendment of 5.4.2018 in the circumstance cannot now have any relation whatsoever to the grant of bonus marks as incentive to in-service candidates for admission into PG medical courses. I am therefore of the considered view that a lack of challenge thereto is of no consequence as will be more appropriately detailed hereinafter. I am also of the considered view that the absence of challenge to the Notification dated 28.4.2017, whereby rural area was defined under the Rules of 1963 is again of little avail to the learned Advocate General's objection to the maintainability of this petition. The Notification dated 28.4.2017 under the Rules of 1963 pertaining to definition of rural areas and (38 of 66) [CW-4765/2019] grant of an additional allowance to in-service Doctors posted in such areas relates to matters within the scope of Rules of 1963 and nothing more. The petitioners have on the other hand challenged the grant of bonus marks as incentive to in-service candidates for determining the merit in the NEET PG examination, 2019 on the basis of proviso to Regulation 9(IV) of the Regulations of 2000 for admission to PG Medical courses. They are not members of the Rajasthan Medical and Health Service nor the Rules of 1963 attract to them. They cannot be concerned with any amendment thereof or the need to lay a challenge thereto.
19. The issue agitated in this petition is as to whether without an appropriate identification and (39 of 66) [CW-4765/2019] notification of remote/ difficult/ rural areas as mandated by the proviso to Regulation 9(IV) of the Regulations of 2000 obtaining subsequent to 5.4.2018, bonus marks as incentive to in-service candidates for admission to PG Medical courses can be granted? That issue was not in consideration before the Division Bench of this Court in D.B. Special Appeal (Writ) No. 501/2018 - State of Rajasthan Versus Dr. Ajit Bagra and others. Further the mere direction of the Division Bench permitting bonus marks as incentive to in-service doctors working in rural areas as defined under the Rules of 1963 and being paid rural allowance does not constitute a ratio decidendi binding on this Court. The rule of precedent applies only where a ratio decidendi is decipherable. The ratio decidendi lies in the reasons for the (40 of 66) [CW-4765/2019] conclusion of a court on a point agitated. It does not lie in the relief granted by the Court. In this view of the matter, there is not ratio decidendi in the judgment of the D.B. Special Appeal (Writ) No. 501/2018 - State of Rajasthan Versus Dr. Ajeet Bagra & Ors. (supra) which binds this Court in addressing the issue in this petition as enumerated earlier in this paragraph. The judgment rendered by the Division Bench, cannot therefore foreclose the challenge as laid in this petition.
20. The objection with regard to this petition being liable to be dismissed on the ground of delay is also unsustainable. This petition seeks a direction from the Court to the State Government / competent authority that (41 of 66) [CW-4765/2019] without constitution of an appropriate committee to identify remote and / or difficult or rural areas and notification of the list of such areas for the purpose of grant of bonus marks as incentive to in-service candidates for admission into PG medical courses 2019-20, bonus marks as incentive to service candidate in addition of their NEET PG-
2019 marks for admission to PG Medical courses not be granted. Further the petitioners have got their skin in game of admissions into PG Medical courses only subsequent to their successfully writing the NEET PG 2019 examination, result whereof was declared in January, 2019. Thereafter on 20.1.2019, an application was moved by one Rishabh Bairwa, similarly placed as the petitioners, having written the NEET PG 2019 examination, before the Public (42 of 66) [CW-4765/2019] Information Officer, Directorate of Medical Health and Family Welfare, Jaipur under Right to Information Act, 2005 (hereafter 'the Act of 2005') seeking information with regard to the definition of term "rural areas", as defined by the State Government / competent authority in furtherance of the amendment dated 5.4.2018 to Regulation 9(IV) of the Regulations of 2000. It was prayed in the application that the applicant be provided the parameters followed by the State Government / competent authority while determining "rural areas" alongwith the list of places covered thereunder for the purposes of grant of bonus marks as incentive to in-service candidates for their admission to PG Medical Courses (Academic Year 2019- 2020). Other related information pertaining to the grant of (43 of 66) [CW-4765/2019] bonus marks as incentive to in-service candidates was also prayed for. In response thereto, vide letter dated 18.2.2019, the Public Information Officer, Directorate of Public Health, Medical and Health Services, Rajasthan furnished to the applicant the Notification dated 28.2.2018 issued under Regulation 9(IV) of the Regulations of 2000 prior to the amendment of 5.4.2018. The petitioners submit that the information by Rishabh Bairwa similarly placed as they are, on being shared with them, conferred a cause of action for laying this petition for the issue agitated. The petition was then filed on 1st March, 2019 i.e. about 10 days of the letter from the Public Information Officer which constituted the cause of action inasmuch it only then transpired that rather than the remote and / or difficult or (44 of 66) [CW-4765/2019] rural areas under the proviso to Regulation 9(IV) of the Regulations of 2000 for grant of bonus marks as incentive to in-service candidates being on due application of mind too on the objective parameters laid down by the Apex Court in various cases, the foundation for grant of bonus marks as incentive to in-service candidates was illegally sought to be rooted in a Notification prior to amendment of 5.4.2018 moreso when at the relevant time the operative Regulation 9(IV) of the Regulations of 2000 was distinct and different. I am of the considered view that in the facts recorded above, the petitioners having approached this Court within 10 days of the information with regard to the lack of objective criterion for grant of bonus marks as incentive to in-service candidates, without any identification (45 of 66) [CW-4765/2019] exercise for the purpose having taken place by the State Government in accordance with the extant Regulation 9(IV) of the Regulations of 2000 and no notification in regard thereto having been issued, this petition cannot be dismissed on the ground of laches.
21. On the merit of the petitioners' case, a bare reading of Regulation 9(IV) of the Regulations of 2000 as amended on 5.4.2018 makes it evident that an All India merit list as well as State-wise merit list of eligible candidates for admission to PG Medical courses is to be prepared on the basis of marks obtained in the NEET and candidates are then to be admitted as per the said merit list. The proviso to Regulation 9(IV) of the Regulations of (46 of 66) [CW-4765/2019] 2000 however does confer a discretion in the State Government / competent authority to grant bonus marks as incentive to in-service candidates while drawing the final merit for the purposes of admissions to PG courses. The contours of discretion for incentivizing in-service candidates entails grant of upto 10% additional marks over the NEET PG marks for each year of service in remote and / or difficult or rural areas with a ceiling of 30% marks obtained in the NEET PG. The proviso to Regulation 9(IV) of the Regulations of 2000 further states that the remote and / or difficult or rural areas are to be notified by the State Government / competent authority from time to time. It is thus pellucid that the remote and / or difficult or rural areas on the basis of which the in-service candidates are to be (47 of 66) [CW-4765/2019] incentivized upto 30% marks obtained by them in the NEET PG are to be objectively determined by the State Government / competent authority with reference to the sacrifice of in-service candidates with reference to their place of posting. That determination however is not at large or at mere ipse-dixit of the State Government / competent authority but has to be founded on objectively verifiable criterion and the list so objectively prepared has to be notified by the State Government / competent authority.
Without such identification of remote and / or difficult or rural areas and notification thereof, bonus marks by way of incentive to in-service candidates for admission to PG medical courses cannot be granted for it is well settled that (48 of 66) [CW-4765/2019] a proviso is in the nature of exception to a main provision and has to be strictly construed.
22. The question therefore, that arises for consideration of this Court is as to whether there was any objective criterion and material in regard thereto before the State Government / competent authority, on the basis of which it identified remote and / or difficult or rural areas, on service where the in-service candidates would be entitled to bonus marks by way of incentives and whether following such identification, the places identified were notified by the State Government / competent authority.
(49 of 66) [CW-4765/2019]
23. From the facts of the case, detailed hereinabove, it is apparent that neither did the State Government / competent authority identify remote and / or difficult or rural areas on the basis of any objective criteria subsequent to the amendment of Regulation 9(IV) of the Regulations of 2000 effective 5.4.2018 nor could it at all notify or did notify such identified areas. There is no force in the contention of Mr. M.S. Singhvi, of Mr. Ashwini Jaiman appearing for the private respondents as also Mr. Vigyan Shah appearing for the interveners that the Notification dated 28.2.2018 suffices for the purposes of identification and notification of remote and / or difficult or rural areas as mandated by the proviso to Regulation 9(IV) of the Regulations of 2000 even subsequent to its amendment on (50 of 66) [CW-4765/2019] 5.4.2018. The argument overlooks the plain difference in the language of proviso to Regulation 9(IV) of the Regulations of 2000 prior to 5.4.2018 and subsequent thereto. It is evident that prior to the amendment of 5.4.2018 to the proviso to Regulation 9(IV) of the Regulations of 2000, 10% of the marks obtained in the NEET had to be granted without variation for each year of service in remote and / or difficult areas by the in-service candidates with the upper limit of 30% marks. This entailed non consideration of service in remote and / or difficult areas beyond 3 years and the apparent irrelevance of such additional service for grant of bonus marks / incentive. The proviso to Regulation 9 (IV) of the Regulations of 2000 subsequent to its amendment on 5.4.2018 on the other (51 of 66) [CW-4765/2019] hand did not require as an immutable rule grant of 10% marks as bonus marks for one year of service in remote and / or difficult areas or rural areas. A percentage lesser than 10% for one year of service could be granted on due application of mind by the State Government / competent authority. It was thus left to the discretion of the State Government / the competent authority by providing that "incentive upto 10% marks obtained for each year of service in remote and / or difficult areas or rural areas"
could be granted. No doubt, the upper limit of 30% of marks over the marks in the NEET PG examination continued to hold. Further the word "rural areas" was added in the proviso to Regulation 9(IV) to the words "remote and / or difficult areas" only on 5.4.2018. That was (52 of 66) [CW-4765/2019] another clear variation. In these circumstances, I am of the considered view that for grant of bonus marks by way of incentive to inservice candidates following the amendment dated 5.4.2018 to the proviso to Regulation 9(IV) of the Regulations of 2000, it was incumbent upon the State Government / competent authority to re-visit the whole issue in that regard. That was not done and the respondent - State Government misdirected itself in seeking to place reliance on the earlier Notification dated 28.2.2018 issued in wholly different circumstance as obtaining at the relevant time relating to the then extant proviso to Regulation 9(IV) of the Regulations of 2000.
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24. The Apex Court in 1993 (1) SCC 479 - State of W.B. & Ors. Versus Rash Behari Sarkar in para 8 has held, albeit in a different context, that "any exercise of power or specification of conditions has to be tested on the Section as it stands". But the statement of law so enunciated holds and applies in the instant petition too. The identification and notification of remote and / or difficult or rural areas thus had to be with reference to proviso to Regulation 9(IV) of the Regulations of 2000, as amended on 5.4.2018 and not with reference to the proviso to Regulation 9(IV) obtaining prior thereto. The reliance on the Notification dated 28.2.2018 as the basis of identification of remote and / or difficult or even rural areas after the amendment of 5.4.2018 to the proviso to Regulation 9(IV) is therefore (54 of 66) [CW-4765/2019] completely misdirected and of no avail. It is also relevant to record that the defence of the respondent - State with reference to Rule 22-A of the Rules of 1963 is also equally untenable. The said rule has to be limited for the purposes of operation of the Rules of 1963 and entitlement to rural allowance based thereon and no more. The definition of "rural areas" under the said Rules of 1963 cannot be reflective of the application of mind by the State Government / competent authority for the purpose of exercise of its discretion under the extant proviso to Regulation 9(IV) of the Regulations of 2000 for grant of bonus marks to incentivize in-service candidates in admission to PG Medical courses. Admittedly, no exercise whatsoever under the extant proviso to Regulation 9(IV) of (55 of 66) [CW-4765/2019] the Regulations of 2000 for identification of rural areas for grant of bonus marks as incentive to in-service candidates has admittedly been ever undertaken subsequent to the amendment of 5.4.2018 to the proviso to Regulation 9(IV) of the Regulations of 2000.
25. The proviso to Regulation 9(IV) of the Regulations of 2000 confers an enabling power for the exercise of discretion by the State Government / competent authority and provide bonus marks by way of incentive to in-service candidates for determining their merit for admissions into PG medical course. That discretion like all discretion in law however has to be exercised on objective consideration / criterion and reasonably. The manner for (56 of 66) [CW-4765/2019] exercise of discretion for grant of bonus marks as incentive to in-service candidates under the proviso to Regulation 9(IV) of the Regulations of 2000 for admissions into PG medical courses has been considered by the Apex Court in the State of Haryana & Anr. Versus Dr. Narender Soni & Ors.
(supra) and State of Uttar Pradesh & Ors. Versus Dinesh Singh Chauhan (supra) as also Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. (supra) -- Albeit in the context only of identification and notification of remote and / or difficult areas under the then extant proviso to Regulation 9(IV) of the Regulations of 2000. It was held by the Apex Court that it was necessary for the exercise of such discretion by the State Government / competent authority to adhere to defined objective standards / criterion. The (57 of 66) [CW-4765/2019] Apex Court held that the relevant objective criteria for the purpose inter-alia entailed identification of such areas with reference to the difficulty posed by the remoteness of a rural area, the difficulty posed by natural and social environmental factors, the difficulty a family would have in terms of housing, water, electricity and schooling and the record of success of the system in filling up the post in the past. Further the identification of remote and / or difficult areas was not to be limited to providing incentives to in-service Doctors for admission to PG medical courses, but also had to be with reference to all other beneficial welfare schemes of the State. It is in the circumstances just for this court to hold on analogy based on justice, equity and good conscience that as the word (58 of 66) [CW-4765/2019] "rural areas" appears in the proviso to Regulation 9(IV) of the Regulations of 2000, following the amendment of 5.4.2018 in the company of the words remote and / or difficult areas, a somewhat similar objective criteria / standard to identify "rural areas" with reference to the remoteness, difficulty posed by natural and social-
environmental factors, the difficulty of the family would in such areas in terms of housing, water, electricity and schooling and the record of success of the system in filling up the post should be adopted. These objective criterion enunciated by the Apex Court for identifying remote and / or difficult areas as set out in the proviso to Regulation 9 (IV) of the Regulations of 2000 as obtaining prior to 5.4.2018 have to be adhered to for (59 of 66) [CW-4765/2019] ascertaining the fairness and reasonableness of discretion exercised by the State Government / competent authority in identifying "rural areas" as occurs in the proviso to Regulation 9 (IV) of the Regulations of 2000 post 5.4.2018.
A mere broad brush definition of rural areas in the context of service rules and payment of rural allowance cannot suffice to be adopted under the extant proviso to Regulation 9(IV) of the Regulations of 2000 for the purposes of grant of bonus marks by way of incentive to in-
service candidates for their admission to PG Medical courses. I am of the considered view that were it to be so permitted in a casual manner, only with reference to rural areas merely on the basis of payment of rural allowance and bonus marks as incentive for admission into PG (60 of 66) [CW-4765/2019] Medical courses thereon granted, it would take away the fundamental underlying principle of admissions to post graduate medical courses being on the basis of merit and as an exception bonus marks as incentive for in-service doctors who pass the NEET PG exam. That merit is the main idea in terms of Regulation 9(IV) for admissions into PG Medical courses cannot be doubted though it can be calibrated on conditions enumerated in the extant proviso to Regulation 9(IV) of the Regulations of 2000. A proviso is in the nature of an exception and has to be strictly construed and hence it has to be strictly applied. The discretion thereunder has to be fair reasonable and non-
arbitrary. The exercise of administrative power has to be on due application of mind. The Apex Court in 2017 (7) SCC (61 of 66) [CW-4765/2019] 221 - Mangalam Organics Ltd. Versus Union of India (UOI) has held that where a statute vests administrative power in an authority and where such power is arbitrarily exercised without due application of mind, on irrelevant considerations and the exercise of discretionary power is not guided by the norms relevant to the object to be achieved, the courts can interfere with the exercise of such power. I am of the considered view that in the facts of the case, the respondents - State Government failed to exercise discretion vested in it under proviso to Regulation 9(IV) of The Regulations of 2000 as amended on 5.4.2018 with due application of mind with reference to the relevant considerations for identification and notification of rural areas (to which the challenge has been confined by Mr. (62 of 66) [CW-4765/2019] Rajendra Prasad in the course of arguments) and instead arbitrarily sought to identify rural areas for the purposes of proviso to Regulation 9(IV) of the Regulations of 2000 with reference to the definition of rural areas under the Rules of 1963 and on the basis of payment of rural allowance. In so doing, the State Government was not guided as it should have been by the relevant norms and criterion as indicated by the Apex Court in the case of Narender Soni (supra) for identification of difficult / remote areas, which apply analogously for reasons of justice, equity and good conscience with equal force to the identification of rural areas. The rural areas not having been so identified, it goes without saying that they were obviously not notified subsequent to the amendment of Regulation 9(IV) of the (63 of 66) [CW-4765/2019] Regulations of 2000 effective 5.4.2018. Bonus marks as incentive based on service in "rural areas" for admission to PG Medical courses cannot therefore be granted.
26. It is relevant to note here that Mr. Rajendra Prasad during the course of arguments had confined his challenge only to the grant of incentive to in-service candidates purportedly working in rural areas without such areas being identified on objective criteria determined by the Apex Court in State of Haryana & Anr. Versus Dr. Narender Soni & Ors. (supra) and State of Uttar Pradesh & Ors. Versus Dinesh Singh Chauhan (supra) as also Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. (supra) and notified subsequent to the amendment of Regulation 9(IV) (64 of 66) [CW-4765/2019] of the Regulations of 2000 on 5.4.2018. He has expressly given up his challenge to the grant of bonus marks as incentive to in-service candidates on the basis of the remote and / or difficult areas with reference to the Notification dated 28.2.2018 -- but only as a concession.
In this view of the matter, the relief in this petition has been confined to the illegality grant of bonus marks by way of incentive to in-service Doctors working in "rural areas"
simplicitor -- other than those also working in the "difficult and / or remote areas" as provided for in the extant proviso to Regulation 9(IV) of the Regulations of 2000.
27. Resultantly, I would allow this petition and restrain the respondents - State Government from granting (65 of 66) [CW-4765/2019] any benefit of bonus marks as incentive to in-service candidates on the basis of their service in rural areas for the purposes of determining their merit at the NEET PG 2019 examination for admissions into PG Medical Courses.
The respondent - State Government however shall be free to form a committee of experts for the purposes of identifying rural areas on the basis of objective criterion analogous to criterion detailed by the Apex Court in its judgment in the case of State of Haryana & Anr. Versus Dr. Narender Soni & Ors. (supra) and for grant of bonus marks thereon as an incentive to in-service candidates for admissions into PG Medical courses. The expert committee shall also be free to determine the extent of incentive for service in different rural areas as it may identify. It is (66 of 66) [CW-4765/2019] however made clear that the notified calendar for admission to PG Medical courses shall not be obstructed in any manner by the constitution of the expert committee for identifying and notifying rural areas for grant of bonus marks as incentive to in-service candidates for admission to PG medical courses, as has been directed here-in-above.
(ALOK SHARMA),J DK Powered by TCPDF (www.tcpdf.org)