Tripura High Court
Dr. Nibedita Talapatra vs The State Of Tripura on 22 November, 2022
Author: Arindam Lodh
Bench: Arindam Lodh
Page 1
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No. 723 of 2022
1. Dr. Nibedita Talapatra,
daughter of Sri Tapan Talapatra, wife of Dr. Laxman Bhattacharjee,
resident of Gour Gobinda Ashram Para, Hapania, near TMC College,
PIN- 799014, District- West Tripura
2. Dr. Ashis Das,
son of late Nani Gopal Das, resident of Bagma, P.S. R.K. Pur, Udaipur,
PIN- 799114, District- Gomati, Tripura
3. Dr. Sahini Debbarma,
daughter of late Manoranjan Debbarma, resident of Khakchang Kami, near
Kali Mandir, P.O. Barkathalia-799211, P.S. Sidhai, District- West Tripura
4. Dr. Arpan Chakma,
son of Sri Puspa Ranjan Chakma, resident of Netajinagar, P.O. Kanchanpur-
799270, P.S. Kanchanpur, District- North Tripura
.....Petitioners
-VERSUS-
1. The State of Tripura, represented by the Principal Secretary,
Department of Health & Family Welfare, Government of Tripura, New
Secretariat Building, New Capital Complex, Kunjaban, PIN-799010, P.S. New
Capital Complex, Agartala, West Tripura
2. The Director of Medical Education, at 2nd floor Building, Government
of Tripura, Bidurkarta Chowmuhani, Agartala-799001, West Tripura
3. The Director of Health Services, Government of Tripura, P.N. Complex,
Gurkhabasti, Kunjaban, Agartala, PIN-799006, West Tripura
4. The Principal, Agartala Government Medical College, Government of
Tripura, P.O. Kunjaban-799006, P.S. New Capital Complex, Agartala, West
Tripura
5. The Medical Superintendent & Head of Department, AGMC & GBP
Hospital, Government of Tripura, P.O. Kunjaban-799006, P.S. New Capital
Complex, Agartala, West Tripura
6. National Medical Commission, represented by its Secretary, Pocket-14,
Sector-8, Dwarka, Phase-1, New Delhi-110077
7. Union of India, represented by the Deputy Secretary, Post Graduate
Medical Education Board, National Medical Commission, Pocket-14, Sector-8,
Dwarka, Phase-1, New Delhi-110077
....Respondents
Page 2
For the Petitioner (s ) : Mr. P. Roy Barman, Sr. Advocate
Mr. S. Bhattacharjee, Advocate
For Respondent (s) : Mr. B. Majumder, Deputy SGI
Mr. D. Bhattacharjee, GA
Mr. S. Saha, Advocate
Date of hearing delivery of
judgment & order : 22.11.2022
Whether fit for reporting : Yes
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
This writ petition has been filed by the petitioners being doctors serving in rural areas of the State of Tripura. The State Medical authorities selected them to pursue Post Graduate course in the State Medical College. While selecting and recommending the names of the petitioners, the respondents-State had determined the merits of the petitioners on the basis of the marks obtained by them in NEET (PG) examination and All India ranking with further addition of incentive marks applicable to in-service candidates serving in rural areas. Incentive marks are awarded at the rate of 10% for each year service in remote/rural/difficult areas maximum upto 30% of marks obtained in NEET (PG) examination. The petitioners had taken admission after being duly recommended, and at present all of them are pursuing their courses.
All on a sudden, the petitioners received a memo dated 17.08.2022 (Annexure 18 to the writ petition) wherein it was communicated that their admission had been cancelled by the Principal of AGMC & GBP hospital, Agartala (respondent no. 4 herein). This cancellation of admission of the Page 3 petitioners was caused pursuant to the letter vide no. F.NMC/MCI-23(1) (115)/ 2022/ PG/027210, dated 22.07.2022 issued by the "National Medical Commission" (for short, "NMC"). In the said communication, the NMC has observed thus:-
"In order to be eligible for admission to Post Graduate Course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the National Eligibility-cum-Entrance Test for Post Graduate courses held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with Benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC/ST/OBC.
The percentile shall be determined on the basis of highest marks secured in the All India Common merit list in National Eligibility-cum-Entrance Test held for post graduate courses.
Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Postgraduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging Page 4 to respective categories and marks so lowered by the Central Government shall be applicable for the academic year only".
In the said communication, the NMC had referred to Clause 9(3) and Clause 9(6) of "Medical Council of India Post Graduate Medical Education Regulations, 2000, (as amended upto May, 2018)" (for short, "NMC Regulations, 2000". Just after receipt of the said memo cancelling their admission, the petitioners have approached this court by way of filing the present writ petition and the court as an interim measure allowed the petitioners to pursue their courses till disposal of the writ petition. Today, the matter has been heard at the admission stage on consent of learned counsel appearing for the parties to the lis.
2. I have heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee and Mr. K. Nath, learned counsel appearing for the petitioners. Also heard Mr. B. Majumder, learned Deputy SGI appearing for the respondents- Union of India (respondents no. 6 and 7), and Mr. D. Bhattacharjee, learned GA assisted by Mr. S. Saha, learned counsel appearing for respondents- State ( respondents no. 1 to 5).
3. Mr. Roy Barman, learned senior counsel has submitted that while cancelling the admission of the petitioners in PG courses, the NMC had misinterpreted and misconstrued the "NMC Regulations, 2000", as amended upto 2018. It is the further contention of Mr. Roy Barman, learned senior counsel that the respondents no. 6 and 7 while asking the Page 5 State-respondents to cancel the admission of the petitioners vide communication dated 22.07.2022, did neither take care of the "NMC Regulations, 2000" nor the State guidelines which was duly notified under "Educational Notification" vide no. F.5(6)-DME/PG (MD)/MS/ Counselling/2021/6381, dated 20.11.2021. The said notification dated 20.11.2021 deals with "The Information Bulletin with consisting Eligibility, Guideline, Registration, Fees, Security Deposit for Round 2, Steps of Counselling, Flow Chart, Applicable Bonds etc. in connection with Tripura State NEET PG (MD/MS/Post MBBS Diploma) 2021"
(here-in-after referred to as Educational Notification, 2021). According to learned senior counsel, the competent authorities of the State have correctly added the incentive marks upto 30% for the first 3 years of their service in rural areas as qualifying marks in determining their respective merits. It is submitted that said practice has been in vogue in the State of Tripura for the last many years as stated in para 13 of the affidavit filed by the petitioners by way of rejoinder. Mr. Roy Barman, learned senior counsel has relied upon a judgment of the Hon‟ble Supreme Court in State of Uttar Pradesh and others vs. Dinesh Singh Chauhan, reported in (2016) 9 SCC 749 to justify the addition of incentive marks in determining the rank/merit of a candidate in the common merit list and admission thereof in PG courses.
Page 6
4. On the other hand, Mr. Majumder, learned Deputy SGI appearing for respondents no.6 and 7 has opposed the aforesaid submission in vehemence. Learned Dy. SGI has submitted that to pursue PG course a candidate must first secure the minimum qualifying marks. In other words, it is the contention of learned Dy. SGI that incentive marks is to be added only after a candidate secures the minimum qualifying marks as provided under Clause 9(3) read with Clause 9(6) of the "NMC Regulations, 2000". Mr. Majumder, has drawn my attention to the chart as encrypted in the counter affidavit where the marks secured by the petitioners in NEET and the respective qualifying marks required to be obtained by each of the petitioners to get admission in PG courses are mentioned, which are extracted here-in-below, for convenience, in extenso:
"
Name Category Marks Obtained Marks Required
in NEET-PG-2021 after lowering of
percentile on
12.03.2021
Petitioner No. 1 - Dr. Nibedita Talapatra General 244 247
Petitioner No. 2 - Dr. Ashis Das SC 189 210
Petitioner No. 3 - Dr. Sahini Debbarma ST 206 210
Petitioner No. 4 - Dr. Arpan Chakma ST 205 210
"
Mr. Majumder, learned Dy. SGI has given much emphasis on
paragraphs 41, 42 and 43 of the counter affidavit to support his submission, which are reproduced here-in-below:
"41. That, it is submitted that proviso to Regulation 9(4) of the aforesaid Regulations has to be read inconsonance with Regulation 9(3) &Regulation 9(6) which categorically provide that no candidate who has failed to obtain minimum eligibility marks in NEET- PG so as to be declared qualified in the first instance, can be counselled / admitted in Page 7 any postgraduate medical course in the Country. A purposive construction of the aforesaid provisions shall necessarily lead to the conclusion that an in-service candidate in his respective category must firstly obtain the minimum eligibility marks in NEET-PG as provided under Regulation 9(3) read with Regulation 9(6), whereafter as he is eligible for counseling, he may be granted benefit of incentive of marks for each year of service in remote and / or difficult areas or rural areas upto a maximum of 30% of marks obtained in NEET-PG Examination.
42. That, it is pertinent to mention here that the benefit of the proviso to Regulation 9(4) of the aforesaid Regulations shall only be available to such in-service candidates who have secured the minimum marks at the respective percentiles as provided in Regulation 9(3) read with Regulation 9(6) and have qualified the NEET-PG Test. The benefit of the proviso to Regulation 9(4) of the aforesaid Regulations shall be provided to such in-service candidates who have qualified the NEET-PG Test in order to determine their inter-se merit towards counseling for admission to various postgraduate courses.
43. That, it is submitted that the weightage in marks as an incentive for each year of service in remote and / or difficult areas or rural areas could be granted to the deserving in-service candidates only after they have secured the minimum of marks at the respective percentiles as provided under Regulation 9(3) read with Regulation 9(6) and cannot be provided in order to qualify the NEET-PG Test."
Learned Dy. SGI has placed reliance upon the decisions of the Apex Court in Tamil Nadu Medical Officers Association and others vs. Union of India and others, reported in (2021) 6 SCC 568 and State of M.P. and others vs. Gopal D. Tirthani and others, reported in (2003) 7 SCC 83.
5. Participating in the deliberations, Mr. Bhattacharjee, learned GA has submitted that State has taken care of both the "NMC Regulations, 2000"
as well as State guideline under notification dated 20.11.2021. Ld. G.A. further submits that according to NMC a candidate must secure qualifying marks first, and thereafter, incentive marks will be added. In view of the NMC clarification on the issue followed by instruction under communication dated 22.07.2022, the State-respondents had cancelled the admission of the petitioners.
6. I have considered the respective submissions of the learned counsel appearing for the parties on the core issues involved in the writ petition.
Page 8
7. Before I delve into the merits of the case, it would be gainful to mention the relevant clauses relating to the core issues raised by the learned counsel appearing on behalf of the contesting parties.
8. At the outset, Clause 9(3), 9(4) and 9(6) of the "NMC Regulations Act, 2000", may be reproduced here-in-below, in verbatim:
"9 (3). In order to be eligible for admission to Postgraduate Course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the 'National Eligibility-Cum-Entrance Test for Postgraduate courses' held for the said academic year.However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, and Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC/ST/OBC. The percentile shall be determined on the basis of highest marks secured in the All India Common merit list in National Eligibility-cum-Entrance Test for Postgraduate courses. Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Postgraduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the academic year only.
9 (4). 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 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.
9 (6). No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub-Clause (3) above shall be admitted to any Postgraduate courses in the said academic year."
Clause 9(11) of the "NMC Regulations, 2000", is also relevant, which reads as under:
Page 9 "9 (11). No authority / institution shall admit any candidate to any postgraduate medicine course in contravention of the criteria / procedure as laid down by these Regulations and / or in violation of the judgments passed by the Hon'ble Supreme Court in respect of admissions. Any candidate admitted in contravention / violation of aforesaid shall be discharged by the Council forthwith. The authority / institution which grants admission to any student in contravention / violation of the Regulations and / or the judgements passed by the Hon'ble Supreme Court, shall also be liable to face such action as may be prescribed by the Council, including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year / years."
9. Now, it is pertinent to extract the relevant provisions, as quoted in the "Educational notification, 2021".
Clause 1 relates to jurisdiction of University, which is "Tripura University". Eligibility criteria for the seat mentioned in clause-1 has been dealt with in clause-2.1. Clause 2.1.(f), is relevant to the question raised in this writ petition, which reads as under:
"2.1.(f). A candidate must get qualifying marks in NEET PG-2021 to participate in the counseling. State in-service candidate must get such qualifying marks after adding incentives of additional marks. Such addition of incentive marks will not be added in regard of participating the council for Post MBBS Diploma seats."
Clause 2.1.A. may be extracted hereunder:
"2.1.A. In-service candidates shall have to fulfil his/her Eligibility Ceiteria & have to state the number of completed year of service in Rural/Difficult/Remote Areas as determined by Appointing Authority/Director of Health Services, Govt. of Tripura with relevant certificates to get the incentives of additional 10% marks per year of Rural/ Difficult/Remote service upto a maximum of 30% marks that he/she obtained in the NEET PG 2021 for 3 years or more of service in Rural/Difficult/Remote Areas of Tripura.
Provided that, in determining the merit of candidates who are in service of Government Service, weightage in the marks will be given as an incentive upto 10% of marks obtained for each year service in remote and/or difficult areas or Rural areas upto maximum of 30% of marks obtained in NEET PG 2021 as additional marks to determine his/her ultimate rank/merit in the Common Merit list of registered candidates from which selection of candidates of PG courses will be done through counseling as per merit (Common Merit List) and seat matrix. The remote/difficult/rural areas shall be as notified by the State Government/ Competent authority from time to time.
For Post MBBS Diploma Courses (at IGM Hospital) such incentives will not be applicable for in-service Doctors in determining his/her ultimate rank. (As for sponsored/In-service earmarked seats)."
[Underlined for emphasis] Page 10 Clause 2.1.B. reads as under:
"2.1.B. In-service candidates of Tripura Health Services to get the incentives for In- service candidature must have the following eligibility- A candidate must be a domicile of Tripura, and A candidate must pass MBBS Degree from Medical College of Tripura or outside the State of Tripura & The candidate must possess No-Objection Certificate from the appointing authority for appearing NEET PG 2021 from the appointing authority.
The candidate must possess service certificate denoting eligibility from the appointing authority which would determine the ultimate merit/rank of the candidate with applicable weightage in marks will not be applicable for an in-service candidate for selection into post MBBS Diploma Seats.
Sponsorship criteria, study leave or other admissible leave, service bond and discontinue bond, etc. will be applicable as per State Government Rules/guideline in respective regard."
Clause 7 deals with the Selection Process, which reads thus:
"7. Selection is purely on merit basis. It will be strictly on the marks obtained in the NEET (PG) and All India Ranking and with adding incentives marks for In-service candidates only irrespective of category as per guidelines. Selection after adding additional marks as incentive to the NEET PG 2021 score obtained will be applicable only for State Quota MD/MS seats of AGMC & TMC."
Clause 3 deals with the „Tripura State Merit List of Candidates, which reads as under:
"3. Tripura State Merit List of Candidates:-
3.1. Tripura State Merit List of Registered eligible NEET PG 2021 candidates shall be prepared from the registered eligible NEET PG 2021 candidate who have registered their name for Tripura State PG (MD/MS) Counselling 2021 with requisite fees with relevant documents. The said Merit List will be prepared by NIC, Agartala, Tripura from the All India Merit List (Ranking) supplied from Assistant Director General (ME), directorate General of Health Services, Ministry of Health & Family Welfare, Govt. of India, New Delhi.
There shall be a common merit list (adding incentives for only eligible In-Service Candidates) indicating merit position and stating each caste category (ST,SC), EWS, PWD categories as per information particulars registered by the candidate which will be published in due course after registration for the counseling by the candidates gets completed by the schedule date.
Schedule of the counseling (including "registration", "choice filling", "allotment result"
will be published shortly in due course.
Seat matrix also will be published shortly in due course."
10. One noticeable feature is that the "Educational notification, 2021"
notified by the Government of Tripura is only applicable to the two Page 11 Medical Colleges of the State. It is not applicable for admission in any other Medical colleges outside the State of Tripura.
11. In the opinion of this court, the State Government has legislative competence under Entry 25 of the concurrent list to frame necessary guidelines or rules or regulations for accommodating the candidates hailing from the State and to give weightage in the marks as incentive for in-service doctors serving in rural areas and to prepare the State's own merit list. Moreso, proviso of sub-clause (4) under Clause 9 of "NMC Regulations, 2000" (as amended upto May, 2018), clearly provides that State government/competent authority is competent to notify the remote/difficult/rural areas and in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the government/competent authority as an incentive at the rate of 10% of the marks obtained in each year of service in remote/ difficult/rural areas upto maximum of 30% of marks obtained in NEET.
12. In the light of Clause 9(4) of "NMC Regulations, 2000", the State has formulated its own schemes/guidelines for selection of in-service candidates to pursue Post Graduate Medical courses. A close reading of Clause 2.1.f and Clause 2.1.A. of the "Educational Notification, 2021", makes it aptly clear that qualifying marks would be determined after adding incentive of additional marks. This further fortified is available from the fact that such advantage of addition of incentive marks will not be Page 12 in case of the candidates who want to pursue Post MBBS Diploma seats. The intention of the State legislature reflected in Clause 2.1.f is further clarified in the proviso of Clause 2.1.A, where it is legislated that in determining the merit of candidates who are in service under the government, weightage in the marks will be given as an incentive upto 10% of marks obtained for each year of services in remote and/or difficult areas or rural areas upto a maximum of 30% of marks obtained in NEET PG, 2021, as additional marks to determine his/her ultimate rank/merit in the common merit list, and to prepare the final merit list. Thus, it is explicit that Clause 2.1.f and Clause 2.1.A of the "Educational Notification, 2021"
as notified by the Government of Tripura including its proviso are pari materia to clause 9(4) "NMC Regulations, 2000."
13. Sub-clause 11 of Clause 9 of "NMC Regulations, 2000", clearly stipulates that selection of a candidate must be in conformity with the guidelines of the Hon‟ble Supreme Court. The Hon‟ble Supreme Court in Tamil Nadu Medical Officers Association (supra) has clearly held that the State guideline is applicable in the matter of admission of its candidates against its State quota to pursue PG course in the Medical college of the State. Furthermore, State‟s Educational Notification, 2021 and the provisions made therein cannot be said to be repugnant of the Entry 25 of the concurrent list which empowers the State governments to frame its own Page 13 scheme for regulating admission for the in-service candidates willing to pursue PG course in the State‟s Medical Colleges under State quota.
14. Now, on conjoint reading of Clauses 2.1.(f), 2.1.A., 7 and Clause 3 of State's "Educational Notification, 2021", there cannot be any doubt to hold that selection of a candidate to pursue PG course would be made on the basis of the marks obtained in NEET PG and All India ranking alongwith addition of incentive marks for in-service candidates serving in rural/remote/difficult areas. In other words, the total marks of in-service candidates serving in notified rural areas would be the total marks obtained in NEET PG and All India ranking and the ultimate merit list or the select list would be prepared after adding the weightage in the marks as incentive at the rate of 10% for each year upto a maximum 3 years.
[[ [Emphasis supplied] ]
15. Mr. Majumder, learned Deputy SGI has not disputed that the State government has followed the said provisions and prepared the final merit list after adding 10% marks for each year maximum upto 30%, but, it is the only contention that State has not followed the clarifications contained in "NMC Regulations, 2000", as stated in paras 41, 42 and 43 of their counter affidavit.
16. It is clarified that the State has prepared the merit list of the candidates willing to pursue PG courses in the Medical colleges under State quota. In my opinion, while preparing such merit list the State Page 14 government cannot deviate from its own guideline making provisions of adding incentive marks for in-service candidates serving in rural areas for the purpose of computing/awarding total marks to determine merits of the candidates.
17. Most noticeable feature is inclusion of the "proviso" under Clause 9(4) of the "NMC Regulations, 2000" qua the proviso under Clause 9.1.A of State‟s "Educational Notification, 2021". A "proviso" to main provision curves out an exception from operation of main provision. However, in many cases, a "proviso" can be substantive provision and acts as a saving clause when such "proviso" will not be controlled by the Section. It is not a separate or independent clause and it cannot be divorced from the main provision/clause. In other words, the correct way to understand a "proviso" would be to read it in the context of the main provision and not in isolation. The Hon‟ble Supreme Court in Tamil Nadu Medical Officers Association (supra) has approved the State‟s competence in formulating its own guideline considering the different factors prevailing in the State. While interpreting Clause 9(4) of the "NMC Regulations, 2000", the Hon‟ble Supreme Court held thus. [SCC p. 688, para 91]:-
"91. Clause 9(IV) of the 2000 Regulations stipulates entry into the postgraduate courses from the two merit lists, one all India and the other that of the State. The same was the scheme of Clause 9(IV) in its erstwhile form. The dispute in these proceedings, however, is mainly on admission norms to postgraduate degree courses. If the State authorities provide reservation for in-service doctors from within the State's own merit list, our view is that such an exercise would be relatable to the admission process and the same would not be in breach of any prohibition flowing from the 2000 Regulations. This would entail some form of variation of the merit list of the State, but we do not find any prohibition under the 2000 Regulations against a State undertaking that exercise. Such Page 15 step undertaken by the State would be relatable to the State's legislative power derived from Entry 25 of the Concurrent List and not covered by the 2000 Regulations. We do not find any repugnancy with the 2000 Regulations if the State authorities create such a distinct channel of entry."
18. The significance of incorporating the "proviso" under Sub-clause (4) of Clause 9 of the "NMC Regulations, 2000" arose before the Hon‟ble apex court for consideration. In the case of Dinesh Singh Chowhan (supra), similar question arose for consideration and interpretation of Clause 9(4) of "NMC Regulations, 2000". At para 25.4, the Hon‟ble Supreme Court has observed that:-
"25.4. Clause (IV) is the relevant provision. It provides for reservation of seats in medical colleges/institutions for reserved categories as per applicable laws prevailing in States/Union Territories. The reservation referred to in the opening part of this clause is, obviously, with reference to reservation as per the constitutional scheme (for Scheduled Caste, Scheduled Tribe or Other Backward Class Candidates); and not for the in-service candidates or Medical Officers in service. It further stipulates that All India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in the NEET and the admission to Post Graduate Courses in the concerned State shall be as per the merit list only. Thus, it is a provision mandating admission of candidates strictly as per the merit list of eligible candidates for the respective medical courses in the State. This provision, however, contains a proviso. It predicates that in determining the merit of candidates who are in-service of Government or a public Authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in specified remote or difficult areas of the State upto the maximum of 30% of the marks obtained in NEET. This provision even if read liberally does not provide for reservation for in-service candidates, but only of giving a weightage in the form of incentive marks as specified to the class of in- service candidates (who have served in notified remote and difficult areas in the State)."
19. In practical scenario, it is noticed that a good number of doctors are not happy with their posting in rural/remote/difficult areas. It is necessary to be noted herein that in the original "Medical Council of India Regulation, 2000", this "proviso" was not found. It was incorporated in MCI Regulation, 2000 (now known as "NMC Regulation") by gazettee Page 16 notification published on 17.11.2009 after Clause 9(2)(d). In the opinion of this court, by way of incorporating this "proviso" in Clause 9(4) of "NMC Regulations, 2000", the law-makers intended to achieve their object of promoting and encouraging the doctors to serve in rural/difficult/remote areas, as notified by the State government. Till now, there is dearth of providing proper and adequate health care facilities in remote and difficult areas due to want of doctors. For that reason, this "proviso" has been inserted in Clause 9(4) of the "NMC Regulations, 2000" making provision for granting incentive marks to the doctors serving in rural areas. Such holistic decision of the legislatures of this country must be given due weightage and respect for the interest of the citizens residing in the rural/difficult/tribal areas. The legislatures have consciously legislated that to determine the academic merit of the candidate, securing higher marks in the NEET should not be the sole criteria and academic merit of the candidate must also be taken into account keeping in mind the services of those doctors who serve the rural/difficult/remote areas sacrificing their own personal interest. Moreso, the doctors serving in urban areas are in better and advantageous position than those of the doctors who serve in remote areas in the matter of preparing themselves for higher studies.
[Emphasis supplied]
20. In the case of Dinesh Singh Chowhan (supra), the Hon‟ble Supreme Court has dealt with the object of inclusion of "proviso" under Page 17 Clause 9(4) of "NMC Regulations, 2000". It was observed thus:- pp 776, 777, para 44 "44. Dealing with this contention, we find that the setting in which the proviso to Clause IV has been inserted is of some relevance. The State Governments across the country are not in a position to provide health care facilities in remote and difficult areas in the State for want of Doctors. In fact there is a proposal to make one year service for MBBS students to apply for admission to Post Graduate Courses, in remote and difficult areas as compulsory. That is kept on hold, as was stated before the Rajya Sabha. The provision in the form of granting weightage of marks, therefore, was to give incentive to the in- service candidates and to attract more graduates to join as Medical Officers in the State Health Care Sector. The provision was first inserted in 2012. To determine the academic merit of candidates, merely securing high marks in the NEET is not enough. The academic merit of the candidate must also reckon the services rendered for the common or public good. Having served in rural and difficult areas of the State for one year or above, the incumbent having sacrificed his career by rendering services for providing health care facilities in rural areas, deserve incentive marks to be reckoned for determining merit. Notably, the State Government is posited with the discretion to notify areas in the given State to be remote, tribal or difficult areas. That declaration is made on the basis of decision taken at the highest level; and is applicable for all the beneficial schemes of the State for such areas and not limited to the matter of admissions to Post Graduate Medical Courses. Not even one instance has been brought to our notice to show that some areas which are not remote or difficult areas has been so notified. Suffice it to observe that the mere hypothesis that the State Government may take an improper decision whilst notifying the area as remote and difficult, cannot be the basis to hold that Regulation 9 and in particular proviso to Clause IV is unreasonable. Considering the above, the inescapable conclusion is that the procedure evolved in Regulation 9 in general and the proviso to Clause (IV) in particular is just, proper and reasonable and also fulfill the test of Article 14 of the Constitution, being in larger public interest."
21. Various facets of "proviso" have been discussed by the Hon‟ble Supreme Court in a catena of decisions. In the case of Prabha Tyagi vs. Kamlesh Devi, reported in (2002) 8 SCC 90, in para 72 has held thus:-
"72. In this context, it would be useful to adumbrate on the principles that govern the interpretation to be given to proviso in the context of main provision. 72.1. The normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main provision. Further, a proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment.
72.2. In this regard, learned Author, Justice G.P. Singh, in "Principles of Statutory Interpretation", 15th Edition, has enunciated certain rules collated from judicial precedents.
Page 18 Firstly, a proviso is not to be construed as excluding or adding something by implication i.e., when on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Secondly, a proviso has to be construed in relation to which it is appended i.e., normally, a proviso does not travel beyond the provision to which it is a proviso. A proviso carves out an exception to the main provision to which it has been enacted as a proviso and to no other. However, if a proviso in a statute does not form part of a section but is itself enacted as a separate section, then it becomes necessary to determine as to which section the proviso is enacted as an exception or qualification. Sometimes, a proviso is used as a guide to construction of the main section. Thirdly, when there are two possible construction of words to be found in the section, the proviso could be looked into to interpret the main section. However, when the main provision is clear, it cannot be watered down by the proviso. Thus, where the main section is not clear, the proviso can be looked into to ascertain the meaning and scope of the main provision.
72.3. According to Justice G.P. Singh, the learned author, the proviso should not be so construed as to make it redundant. In certain cases, "the legislative device of the exclusion is adopted only to exclude a part from the whole, which, but for the exclusion, continues to be a part of it", and words of exclusion are presumed to have some meaning and are not readily recognized as mere surplusage. As a corollary, it is stated that a proviso must be so construed that the main enactment and the proviso should not become redundant or otiose. This is particularly so, where the object of a proviso sometimes is only by way of abundant caution, particularly when the operative words of the enactment are abundantly clear. In other words, the purpose of a proviso in such a case is to remove any doubt. There are also instances where a proviso is in the nature of an independent enactment and not merely, an exception or qualifying what has been stated before. In other words, if the substantive enactment is worded in the form of a proviso, it would be an independent legislative provision concerning different set of circumstances than what is worded before or what is stated before. Sometimes, a proviso is to make a distinction of special cases from the general enactment and to provide it specially.
72.4. At this stage, the construction or interpretation of a proviso could be discussed as gathered from various judgments of this Court.
72.4.1 In Ishverlal Thakorelal Almaula vs. Motibhai Nagjibhai [AIR 1966 SC 459], while dealing with the Bombay Tenancy and Agricultural Lands Act, 1948, this Court held, that a proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso, would be within that clause. 72.4.2. In Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories [AIR 1965 SC 980], while considering the proviso to Section 6 of Trade Marks Act, 1940, it was observed that it would not be a reasonable construction for any statute, if a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it should be held to be otiose and to have achieved nothing. 72.4.3. In Kedarnath Jute Mfg. Co. Ltd. vs. CTO, [AIR 1966 SC 12], it was observed that: (AIR p.14, para 8) "8. .... 'the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment or to qualify something enacted therein, which, but for the proviso, would be within it".
[See Craies on Statute Law, 6th Edition - P. 217].
In this case, the Court was considering Section 5(2) (a) (ii) of Bengal Finance (Sales Tax) Act, 1941 and Rule 27-A of Bengal Sales Tax Rules.
72.4.4. In Dattatraya Govind Mahajan Vs. The State of Maharashtra [AIR 1977 SC 915], a Constitution Bench of the Supreme Court, while considering the amendment made to Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, in the context of Article 31B of the Constitution and the second proviso thereto, reiterated what was stated in Ishverlal case.
72.4.5. In S. Sundaram Pillai vs. V.R. Pattabiraman [AIR 1985 SC 582], while dealing with the scope of a proviso and explanation to sub - section (2) of Section 10 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, this Court held that a proviso may have three Page 19 separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or qualifying some thing enacted therein which, but for the proviso, would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment, nor can it be used to nullify or set at naught the real object of the main enactment. Sometimes, a proviso may exceptionally have the effect of a substantive enactment.
72.5. After referring to several legal treatises and judgments, this Court held in the above judgment as under:- (S. Sundaram Pillai case [1985 1 SCC 591] SCC p. 610 para 43) "43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main enactment; (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision."
72.6. The approach to the construction and interpretation of a proviso is enunciated in the following cases.
72.6.1. In M. Pentiah vs. Muddala Veeramallappa - [AIR 1961 SC 1107], it was observed that while interpreting a section or a proviso, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, one should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
72.6.2. In Supt. & Remembrancer of Legal Affairs vs. Abani Maity [AIR 1979 SC 1029], this Court observed that the statute is not to be interpreted merely from the lexicographer's angle. The Court must give effect to the will and in-built policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein. The words in a statute often take their meaning in the context of a statute as a whole. They are, therefore, not to be construed in isolation.
22. In the case in hand, Director of Health Services, Government of Tripura after examining all necessary certificates required to grant weightage marks mentioned in clause 2.1.B. added the incentive marks in favour of the candidates appeared in the selection process and in my opinion, there is no illegality in the process in selecting the petitioners to pursue PG course in both the Medical Colleges of the State.
23. In view of Clause 9(4) of the "NMC Regulations, 2000" qua the State‟s "Educational Notification, 2021", I am unable to accept the Page 20 submission of learned Deputy SGI in respect of the fact that a candidate to pursue PG course under State quota is to first secure the qualifying marks and in case they secure the qualifying marks only thereafter weightage in the marks in the form of incentive would be added to determine the merit of the candidate to prepare the final merit list. In my opinion, this is an absurd proposition the learned Deputy SGI has tried to project which will, if accepted, frustrate the purpose of legislation.
24. In the opinion of this court, "NMC Regulations, 2000" has its own statutory flavour. The language of the relevant provisions under both "NMC Regulations, 2000" and State‟s "Educational Notification, 2021" is clear, plain and unambiguous. Rule of "interpretation" suggests that, if the words of the statute are in themselves precise and unambiguous, then, no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver. Interpretation of law has two essential purposes- one is to clarify to the people governed by it, the meaning of the letter of the law, the other is to shed light and give shape to the intent of the law- maker and in this process the court‟s responsibility lies in discerning the social purpose which the specific provision subserves. [Apex Laboratories Private Limited vs. Deputy Commissioner of Income Tax, Large Tax Payer Unit-II, reported in (2002) 7 SCC 98, para 40].
Page 21
25. In my ultimate analysis, the relevant provisions under clause 9(3), 9(4) and 9(6) of the "NMC Regulations, 2000" and the provisions encrypted under the State‟s "Educational Notification, 2021" must be read and interpreted harmoniously to give weightage to the legislative intendment. It becomes evident that the respondents no. 6 and 7 have erroneously interpreted clause 9(4) of the "NMC Regulations, 2000" while communicating the order dated 17.08.2022. The state-respondents also could not apply their mind to the provisions made in the "Educational Notification, 2021".
26. In sequel, the communication dated 17.08.2022 made by the respondents no. 6 and 7 is declared as devoid of merit being inconsistent to clause 9(4) of the "NMC Regulations, 2000" and runs in contra to the object the legislature wanted to achieve.
27. Consequently, the impugned order dated 17.08.2022 cancelling the admission of the petitioners from pursuing their PG courses issued by the Principal, AGMC & GBP hospital, Agartala, is hereby set-aside and quashed. This court hopes and trusts that respondents no. 6 and 7 would follow this judgment since it is held that they have misunderstood and misconstrued the relevant provisions in awarding/computing the qualifying marks in respect of in-service candidate serving in rural/difficult/tribal areas. It is further clarified that the ultimate merit list pursing PG courses would be computed on the basis of the marks obtained in NEET PG Page 22 examination and All India Rank with further addition of incentive marks in appropriate case(s), as prescribed under clause 9(4) of the "NMC Regulations, 2000" qua the State‟s guidelines in this respect.
28. With the aforesaid directions, the instant writ petition stands allowed and thus disposed of. Pending application(s), if any, also stands disposed.
JUDGE Saikat