Jammu Tawi, April 27
In a landmark judgment. Justice Janak Raj Kotwal of J&K High Court Jammu Wing today held that NRHM doctors are eligible for the benefits of Regulation 9 of MCI regulations 2000 which provides that a doctor who served in difficult/remote areas shall be entitled to 10% additional marks for each completed year of service.
In the petition filed by Shahnawaz Ahmed Choudary and other who have qualified National Eligibility-Cum-Entrance Test, 2017 for admission to the Post Graduate Medical Courses conducted in terms of Regulation 9 of the Medical Council of India Post Graduate Medical Education Regulations, 2000 (hereinafter for short to be referred as the ‘MCI Regulations’).
Adv Abhinav Sharma appearing for the petitioners submits that by virtue of the MCI Regulations, which have been framed by the Medical Council of India (MCI) in exercise of powers under Section 33 read with Section 20 of the Indian Medical Council Act, 1956, the MCI has inter alia laid down the eligibility criteria and procedure for admission to the Post Graduate Medical courses, that is, MD, MS and PG Diploma and MDS. The procedure for selection of candidates for admission to the Post Graduation courses all over the country is provided under Regulation 9. The proviso added after sub-clause IV of Regulation 9 by virtue of Notification No. MCI-18(1)/2010-Mad/62052 dated 15.02.2012, which provides for incentive marks to in-service candidates for remote or/and difficult area service”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 at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas up to the maximum of 30% of the marks obtained in National Eligibility- cum Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent authority from time to time.”
Justice Janak Raj Kotwal after hearing Adv Abhinav Sharma appearing for the petitioners whereas Advocate General Jahangir Iqbal Ganai assisted by Deputy AG Ashish Singh Kotwal appearing for the state observed that a letter written by the Government, Health and Medical Education Department, to the Public Service Commission under subject head: “clarification regarding in-service status of contractual employee of National Rural Health Mission.” By virtue of this letter, the Government while referring to letter dated 24.01.2014 (supra) has conveyed to the Public Service Commission that “the Doctors working (on contract) under NRHM in the State shall be treated as in-service candidates for the purpose of age relaxation for recruitment to the post of Medical Officer, provided they subsist in contractual appointment as on the date of issue of the Advertisement by the Selection Agencies.”
Justice Janak Raj Kotwal further observed that in view of the said two letters, it is evident that the Government (Administrative Department) in principle has taken a clear executive decision that the doctors engaged on contract basis under NRHM shall be treated as in-service candidates for giving them benefit under SRO 401 of 2009 for admission to Post Graduate Medical courses as also for the purpose of age relaxation for recruitment to the post of Medical Officer in the government service. It should be on the same analogy that those petitioners herein, who are engaged under NRHM, have been given the benefit of incentive marks under SRO 401.
Justice JR Kotwal further observed that in face of the clear decision taken at Executive level and the benefit in terms of SRO 401 having been given to the doctors engaged under NRHM in the current admission process also, respondents cannot be heard saying that such a benefit is not available under the MCI Regulations. Such a stand rather is ridiculous and self contradictory and is liable to be rejected on this score only and there would be no justification in depriving the doctors engaged under NRHM of the benefit of incentive marks by not treating them as in-service candidates for that limited purpose. A close look at the fourth proviso to Regulation 9 would show that it is an incentive for the service rendered by the doctors in remote or/and difficult areas. It does not make any distinction between a doctor appointed in government service on regular basis and a doctor engaged on ad hoc or contractual basis. The benefit is not restricted to a doctor who has volunteered for serving in remote/difficult area. The requirement simply is that one should have served in such an area, notwithstanding that his posting in that area was as an incident of service or because of area restricted engagement. The laudable purpose is to reward a doctor for having worked in such areas and to encourage others to work there in future.
Justice Kotwal further observed that it emerges as common ground of both the sides that NRHM is a Scheme launched by the Central Government for augmenting the public health delivery system, whereby the funds are allotted by the Central Government to the State Governments, whereas the engagement of the doctors and other staff is made by the State Governments. It is not denied that the doctors so engaged are identically qualified as the regular doctors in the State Government Service, they work under the control of the State Government and render duties similar to those rendered by the doctors in regular service. Similar issue had been raised before the Rajasthan High Court in Dr. Richa Tiwari and ors. The issue raised was “as to whether the petitioners having been employed in the NRHM Scheme for varying period of three and two and a half years can be considered to be in-service candidates for the purpose of admission to the Post Graduate (MD/MS) Course in Ayurveda”. The issue was answered in affirmative by the High Court and the petitioners were treated as in-service candidates for the purpose of consideration for admission to the Post Graduate Ayurveda Course (MD/MS). The judgement of the Delhi High Court in Stuti Ranjan’s case cited to by the AG, does not apply to the proposition involved in this case because in that case the Delhi High Court has explained as to how the principle of equal pay for equal work cannot be applied to the doctors engaged under NRHM.
Justice JR Kotwal after hearing Adv Abhinav Sharma appearing for the petitioners whereas Advocate General for the state in length observed that the contention in this regard, as indicated above, should not have been raised before this Court in view of the decision taken at the executive level and benefit under SRO 401 having already been extended to the doctors engaged under NRHM and the contention, however, is rejected for the reasons discussed above and it is held that for the purpose of admission to Post Graduate Courses the doctors engaged on contractual basis under NRHM in the State are eligible for the benefit of incentive marks in terms of Regulation 9 of the MCI Regulations and granting such benefit in terms of SRO 401 of 2009 is illegal.
Justice JR Kotwal further observed that the irresistible conclusion that is arrived at is that the BOPEE has fallen in error in refusing benefit of incentive marks in terms of the fourth proviso to the MCI Regulations to the candidates, who have been given benefit in terms of SRO 401 of 2009, including herein petitioners 1 to 11 and the case of petitioner No.12, however, stands on a different footing. He admittedly has not claimed benefit for remote or difficult area service as the benefit claimed by him is that for ‘rural area service’. In this writ petition, the case of petitioner No. 12 seems to have unnecessarily intermingled with the case of other petitioners without setting out and explaining as to what error has been committed by the BOPEE in not giving the benefit on that score to him.
With these observations Justice JR Kotwal allowed the petition to the extent of petitioners 1 to 11 is allowed and by issue of a writ of certiorari para 8.e.(5) and para 11 of the Information Brochure issued by the BOPEE, Notification No. 08/BOPEE of 2017 dated 25.02.2017, Notification No. 10/BOPEE of 2017 dated 03.03.2017 and the Public Notice No. 01/BOPEE of 2017 dated 25.02.2017 issued by the BOPEE, are quashed and by issue of a writ of mandamus, BOPEE is directed to award incentive marks in terms of the MCI Regulations to all the candidates, who have been found entitled to benefit in terms of SRO 401 of 2009, including the petitioners 1 to 11 and to immediately re-draw the State Merit List so that admission process is completed within stipulated period. JNF
Jammu Tawi, April 27