HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.9390/2022
Dr. Rakesh Kumar Saini S/o Shri Basanti Lal Saini, Aged About 35
Years, R/o 83/113, Sector-8, Pratap Nagar, Jaipur (Raj.).
----Petitioner
Versus
1. State of Rajasthan, through Additional Chief Secretary,
Department of Medical Education, Government
Secretariat, Jaipur.
2. State of Rajasthan, through Principal Secretary,
Department of Medical and Health, Government
Secretariat, Jaipur.
3. Director (Public Health), Medical and Health Services,
Swasthya Bhawan, C-Scheme, Jaipur (Raj.).
4. Principal Medical Officer, Government BDM Hospital,
Kotputali, Jaipur (Raj.).
----Respondents
Connected With S.B. Civil Writ Petition No. 10044/2022 Dr Ashwani Kumar S/o Shri Ram Kripal, Aged About 31 Years, R/o Housing Board Colony, H.N. 1/1, Churu (Raj.)
----Petitioner Versus
1. State of Rajasthan, through Additional Chief Secretary, Department of Medical Education, Government Secretariat, Jaipur.
2. State of Rajasthan, through Principal Secretary, Department of Medical and Health, Government Secretariat, Jaipur
3. Director (Public Health), Medical and Health Services, Swasthya Bhawan (Raj.)
4. Chairman, NEET PG Admission/Counseling Board 2022, Govt. Dental College (RUHS College Of Dental Sciences).
----Respondents
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For Petitioner(s) : Mr.Ashwinee Kumar Jaiman, Adv.
For Respondent(s) : Dr.V.B. Sharma, AAG with Mr.Harshal
Tholia, Adv. & Mr.Ankit Rathore, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
25/08/2022
These two writ petitions involve common issue, as such, they are being decided by a common order, with the consent of learned counsel for the parties.
The petitioners are In-Service Doctors working in the State of Rajasthan and they feel aggrieved by the notification dated 20.12.2021, whereby the State Government has extended the benefit of bonus marks to In-service Doctors, who were posted in rural/remote/difficult areas, prior to their posting during COVID-19 period in RUHS, Medical Colleges and other designated Hospitals.
The grievance of the petitioners is that they have also rendered services by virtue of orders issued by the State Government, posting them during COVID - 19 period, at aforesaid places i.e. RUHS and attached Hospitals and COVID-19 designated Hospitals and only on the basis of their earlier posting in urban area, the said benefit cannot be denied to the petitioners.
The petitioners have submitted that the benefit of bonus marks to In-service Doctors is required to be extended to all the Doctors, who were posted during COVID-19 period, at the aforesaid places as they form a homogeneous class for the (Downloaded on 31/08/2022 at 11:39:40 PM) (3 of 12) [CW-9390/2022] purpose of getting benefit of bonus marks and the State Government, while issuing the notification dated 20.12.2021, has acted in arbitrary and discriminatory manner by creating an artificial classification and the same is violative of Article 14 of the Constitution of India.
Learned counsel for the petitioners Mr.Ashwinee Kumar Jaiman submitted that initially the petitioners filed the writ petition challenging the conditions which were prescribed in the circular/letter dated 03.06.2022, containing note No.5 as it did not count the services rendered by the petitioners at RUHS and later by filing an amendment application, notification itself has been challenged by the petitioners in the present petitions.
Learned counsel for the petitioners has made following submissions :-
(I) The impugned action of the respondents while creating two classes, is arbitrary, discriminatory and having no rational/nexus for creating two Classes of Medical Officers and by creating such two classes, no object is sought to be achieved by the respondents.
(II) Learned counsel for the petitioners submitted that primary and singular object of awarding of incentive marks is to recognize service rendered by the Medical Officer during COVID- 19 pandemic and there cannot be a distinction between such recognition on the basis of previous posting.
(III) The basis and determination of merit of In-service candidates by giving them incentive marks is provided in Regulation 9 of the MCI PG Regulations, 2000 and if similarly situated persons are extended the benefit of services rendered at RUHS and attached Hospitals & designated Hospitals at District (Downloaded on 31/08/2022 at 11:39:40 PM) (4 of 12) [CW-9390/2022] Headquarters and only because the petitioners were earlier posted in urban area, they having no control of their posting and transfer and as such, they cannot be deprived from getting the benefit of grant of bonus marks as In-service candidates.
(IV) The action of the respondents will result into a situation where services of the petitioners, taken were at par with the Doctors, who rendered their services and were earlier posted in rural/remote/difficult areas but will be getting the benefit for doing the same job and the petitioners only on their earlier place of posting, would be deprived to get the benefit.
(V) Learned counsel submitted that the decision taken by the State Government before issuing a notification dated 20.12.2021 was not proceeded by due deliberation and relevant factors were not kept in mind, while issuing the notification dated 20.12.2021.
Learned counsel submitted that this Court had specifically asked the respondents to file specific affidavit to explain as what considerations were kept in mind by the State Government before taking the decision or at the time of issuing the notification. However, the affidavit filed by the respondents before this Court, does not disclose the due deliberation and the specific query which was put before the Competent Authority was never answered by the State Authorities and even legal opinion sought from the learned Advocate General, did not answer the specific query with regard to the grant of benefit of bonus marks to working In-service Doctors, who rendered their services during COVID-19 period and were posted at urban area before their transfer and posting done by the State Government. (Downloaded on 31/08/2022 at 11:39:40 PM)
(5 of 12) [CW-9390/2022] Learned counsel submitted that non-consideration of relevant factors before taking the decision is an arbitrary exercise of power and the same is required to be declared bad and illegal by this Court.
Learned counsel for the petitioners in support of his submissions, places reliance on the following judgments:-
1. Virendra Krishna Mishra Vs. Union Of India reported in [(2015)2 SCC 712].
2. Director General, CRPF & Ors. Vs. Janardan Singh & Ors. in Civil Appeal No.5850/2011.
3. Union of India Vs. Dinesh Engineering Corporation & Another in Civil Appeal No.5624/1994.
4. The judgment passed by the Madhya Pradesh High Court in the case of Dr.Brijesh Yadav & Ors. Vs. The State of M.P. and Ors. in Writ Petition No.4316/2017, dated 01.05.2017.
Learned counsel on the strength of said judgments submitted that if there is no intelligible differentia then in absence of valid classification, the action of the State is required to be declared arbitrary.
Learned counsel, on the strength of a judgment passed in the case of Union of India Vs. Dinesh Engineering Corporation & Another (supra) as referred hereinabove, submitted that policy decision of the State Government is not immune from judicial scrutiny, if the same is passed by the Authorities without considering the relevant factors and such decision is required to be termed arbitrary as it will be treated as violative of the mandate of Article 14 of the Constitution of India. (Downloaded on 31/08/2022 at 11:39:40 PM)
(6 of 12) [CW-9390/2022] Learned counsel for the respondents-State Mr.Harshal Tholia submitted that prayer sought by the petitioners in the writ petitions, may not be granted by this Court, as the decision which has been taken by the State Government, cannot be termed as arbitrary in any manner.
Learned counsel for the respondents-State submitted that the State Government has taken a conscious decision to extend the benefit of bonus marks to those In-service Doctors who were earlier posted in rural/remote/difficult areas and by way of working arrangement, these Doctors were asked to work during COVID-19 period in designated Hospitals.
Learned counsel submitted that during posting of these Doctors at designated Hospitals, even their salary was drawn from the places, where they have been earlier working and due to COVID-19 period, the benefit was required to be extended to these categories of Doctors and as such, only because of exigency of service, if they came to be posted at designated Government Hospitals, such Doctors were not required to be deprived from getting the benefit of bonus marks as In-service candidates.
Learned counsel for the respondents-State submitted that the State Government has not made any mini classification or discriminatory classification between the two categories of In- service Doctors and it is absolutely wrong on the part of the petitioners to club themselves with those Doctors, who were earlier posted in rural/remote/difficult areas.
Learned counsel submitted that place of posting of In- service Doctors before their posting at designated Hospital was a relevant consideration for the State Government to take the decision to protect the service benefit of such employees and for (Downloaded on 31/08/2022 at 11:39:40 PM) (7 of 12) [CW-9390/2022] granting any benefit to other Doctors, who were posted during COVID-19 period.
Learned counsel submitted that if the (intelligent differentia) put forward by the petitioners is accepted by this Court, the same would amount that all those Doctors, who rendered their services during COVID-19 period, are required to be given benefit as In-service candidates.
Learned counsel submitted that the petitioners or for that matter any In-service Doctor do not have a vested right to claim bonus marks and it is only the Competent Authority by keeping in mind the relevant considerations, can extend the benefit of bonus marks.
Learned counsel further submitted that the affidavit filed before this Court clearly discloses that due deliberation had taken place before granting benefit to such In-service Doctors and after seeking legal opinion from the highest legal office of the State i.e. Advocate General, the Competent Authority has accordingly passed the order and the notification was issued.
Learned counsel further submitted that the policy decision of the State Government is based on reasonable considerations which were to take due care of In-service Doctors who were already posted in rural/remote/difficult areas and if such Doctors were to be deprived from getting benefit of bonus marks as In-service Doctors, the same would have resulted into causing grave prejudice to these Doctors, who are already rendering their services in the rural/remote/difficult areas.
Learned counsel submitted that the State Government has fulfilled the twin test of making a reasonable classification between the In-service Doctors, who are posted in Urban area and (Downloaded on 31/08/2022 at 11:39:40 PM) (8 of 12) [CW-9390/2022] non-urban area and the object of giving bonus marks to such In- service Doctor has already been kept in mind.
Learned counsel for the respondents-State further submitted that the petitioners, merely by their posting during COVID-19 period at designated Hospitals, will not become eligible to get the bonus marks as their posting during COVID-19 period, was required as exigency of service and only because the petitioner came to be posted at such distinct places, no benefit can be extended to them.
Learned counsel for the respondents has also placed reliance on the judgment passed by the Division Bench in the case of Dr.Neha Choudhary Vs. State of Rajasthan & Ors. and other connected matters D.B. Special Appeal (Writ) No.201/2022 dated 25.01.2022 and the judgment passed by the Punjab & Haryana High Court in the case of Dr.Parampreet Kaur & Ors. Vs. State of Punjab & Another in CWP No.12803- 2020(O&M), dated 01.09.2020.
Learned counsel, on the strength of said judgments, submitted that In-service Doctors cannot claim any vested right to get the bonus marks, as it will always be independent policy decision of the State Government to extend the benefit to certain candidates by keeping in mind the relevant consideration.
I have heard the submissions made by learned counsel for the parties and perused the material available on record.
The primary issue before this Court is to decide the right of the petitioners of award of bonus marks as In-service Doctors, while they were posted at designated Government COVID Hospitals.
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(9 of 12) [CW-9390/2022] This Court finds that the petitioners were earlier posted at different places and those areas were not rural/remote/difficult areas. The posting of the petitioners due to COVID-19 pandemic, at different designated Hospitals, necessarily was requirement of administrative exigency and as such, the petitioners were called upon from different places to work at designated Hospitals.
This Court finds that the State Government, as such, has nowhere extended the benefit of services rendered during COVID-19 period and all the persons, who were working at different places, were asked to work during COVID-19 - difficult situation and as such, the Doctors were also called upon from different places at designated hospitals.
This Court finds that the purpose of grant of bonus marks to In-service Doctors is primarily for the reason of rendering their services in rural/remote/difficult areas and if such Doctors were rendering their services prior to their posting/transfer during COVID-19 period at designated Hospitals, the same was not to result to affect their rights in any manner.
This Court finds that if the State Government has kept in mind the relevant consideration of protecting the service conditions of those In-Service Doctors, who were earlier working in rural/remote/difficult areas, then their postings due to administrative exigency, were not to result into any loss to them for the purpose of grant of benefit of bonus marks.
The submission of learned counsel for the petitioners that the petitioners and other In-Service Doctors, who were posted during COVID-19 pandemic at designated Hospitals, form a same class and there could not have been any further classification between them, this Court finds that the said (Downloaded on 31/08/2022 at 11:39:40 PM) (10 of 12) [CW-9390/2022] submission is not to be accepted by this Court, as it cannot be held that the Doctors, who were earlier posted in urban area and if they came to be posted during COVID-19 at designated Hospitals, they will form a same class.
The submission of learned counsel for the petitioner that it is the service which is rendered during COVID-19, which is important and the prior place of posting of the petitioners is not relevant, this Court finds that the said submission cannot be accepted by this Court, as the petitioners prior to their posting during COVID-19 at designated Hospitals, were rendering their services in urban area and after rendering their services during COVID-19, either were reverted back to their original place of posting or they were not posted in rural/remote/difficult areas.
This Court finds that if the State Government has kept in mind the service conditions of In-service Doctors, working at designated hospitals and such period is to be protected, the same decision cannot be said to be arbitrary from any stretch of imagination.
The submission of learned counsel for the petitioners that the policy decision of the State Government suffers from arbitrariness as neither there was intelligible differentia or object in mind of the State Government, which they wanted to achieve, suffice it to say by this Court that if proper classification is done by the policy makers of the State Government and there is a reason for granting any benefit in favour of such persons, then it cannot be said that the policy makers of the State Government, has not kept in mind the relevant considerations.
This Court finds that counsel for the petitioner has placed reliance on the judgment passed by the Apex Court in the (Downloaded on 31/08/2022 at 11:39:40 PM) (11 of 12) [CW-9390/2022] case of Director General, CRPF & Ors. Vs. Janardan Singh and others (supra).
This Court finds that the Apex Court in the said case was considering the issue about the place of posting of those petitioners therein and their Headquarters was at a different place and as such, the Apex Court found that only because of the Headquarters being at different places, persons were not to be deprived of the Special Duty Allowance and as such, only on the basis of the posting of the particular persons without their Headquarter at the same place, such persons could not have been denied the benefit of Special Duty. This Court finds that the said judgment is of little assistance to learned counsel for the petitioners.
The reliance placed by learned counsel for the petitioners on the judgment passed by the Apex Court in the case of Virendra Krishna Mishra (supra), this Court finds that the Apex Court has reiterated the principle that there has to be intelligible differentia and object which is required to be achieved, otherwise such action of the State Government will suffer from arbitrariness. This Court finds that if the State Government has kept in mind the intelligible differentia and the object behind it, then the same cannot be termed as violative of any rights of the petitioners so also violative of Article 14 of the Constitution of India.
Learned counsel for the petitioners also places reliance on the judgment passed by the Apex Court in the case of Union of India Vs. Dinesh Engineering Corporation and Anr. (supra), this Court finds that the Apex Court has reiterated the principle that if any administrative decision or a policy decision is (Downloaded on 31/08/2022 at 11:39:40 PM) (12 of 12) [CW-9390/2022] taken without considering the relevant facts, the same has to be termed arbitrary decision and if it is arbitrary, then the action of the State has to be declared as violative of mandate of Article 14 of the Constitution of India.
This Court finds that in the present case as per explanation furnished in the additional affidavit, the decision, which was taken by the respondents, was taken after keeping in mind the relevant facts and as such, the decision cannot be termed as arbitrary.
The reliance placed by learned counsel for the petitioners on the judgment passed by the Madhya Pradesh High Court in the case of Dr.Brijesh Yadav and Ors. Vs. The State of M.P. and Ors. (supra), this Court finds that the issue before the said Court was in respect of defining the area i.e. difficult area or remote area and the State was required to keep in mind the relevant considerations for defining such areas and as such, the said judgment is of little assistance to the submissions made by learned counsel for the petitioners.
This Court finds that no right of the petitioners has been violated by the State Government and as such, the petitions being devoid of merit, are dismissed accordingly.
A copy of this order be placed in connected petition.
(ASHOK KUMAR GAUR), J Himanshu Soni/93-94 (Downloaded on 31/08/2022 at 11:39:40 PM) Powered by TCPDF (www.tcpdf.org)