Dr. Shriram Omprakash Fafat And ... vs The State Of Maharashtra , Through ...
2017 Latest Caselaw 7879 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                   WRIT PETITION (ST.) NO.    22599    OF    2017


         1.  Dr. Shriram Omprakash Fafat & Ors.             ) ...  Petitioners. 
              Age:33, Occupation: Medical Officer,          )
              Address: Primary  Health  Centre,             )
              Bhongoan, Shegaon,                            )

         2. Dr.Archana A. Meshram                           )
            Age:    years, Occupation:Medical Officer,      )
            Address:Lopamudra Apartment, Civil lines,       )
            Bhandara 441904.                                )

         3. Dr. Sujit S. Khairnar                           )
             Age:    years, Occupation:Medical Officer,     )
             Address:'Dheya', Plot No.24,                   )
             Amrutvarsha Colony, Sainathnagar,              )
             Nashik 422 006.                                )

         4. Dr.Deepashri Morale                         )
             Age:    years, Occupation:Medical Officer, )
             Address:Morale Niwas, Sant Namdeo Nagar,)
             Dhanora Road, Beed 431 122.                )

         5. Dr. Swapnali S. Mane                       )
            Age:    years, Occupation:Medical Officer, )
            Address:'Punyai Niwas, Swagat Mahsul Colony,)
            Mahatma Gandhi Nagar, Osmanabad 413501.)

         6. Dr.Shattari Tanhaniyat Banu Abdul Hafij         )
            Age:    years, Occupation:Medical Officer,      )
            Address:Handarguli, Tal:Udgir,                  )
            Taluka: Latur.                                  )  




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                                       V/s.


         1. The State of Maharashtra                          )  ...Respondents.
            Through Secretary,                                )
            Public Health Department,                         )
            Mantralaya, Mumbai 400 032.                       )


         2. The Director,                               )
                               th
             Health Services, 8  floor, Arogya          )
             Bhavan, St.George Hospital Compound,     )
             P.D'Mello Road, Near C.S.T.Station,        )
             Mumbai 400 001.                            )


         3. Medical Council  of India,                       )
             Through its Secretary,                          )
             Pocket=14, Sec.8, Dwarka,                       )
             Phase=I, New Delhi - 110177.                    ) 
                                              ---

         Mr. Pralhad D.  Paranjape, Advocate  a/with Ms. Ritu Savla  & 
         Mrs. Shubhra Paranape for the Petitioners.

         Mr.   Abhinandan B. Vagyani, GP a/w.   Mr. C.P. Yadav, AGP, 
         Mr.   G.R.   Golatkar,   AAGP   and   Mr.   R.S.Sawant,   AAGP   for 
         Respondent Nos. 1 and 2. 

         Mr.   Ritesh   Ratnam,   Advocate   i/by   Ganesh   K.   Gole   for 
         Respondent No. 3- MCI.
                                           ---




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                                       CORAM :  ANOOP V. MOHTA       AND
                                                       SMT.BHARATI H. DANGRE,JJ.

RESERVED ON : 28th SEPTEMBER, 2017 PRONOUNCED ON : 06th OCTOBER, 2017

JUDGMENT : (Per Smt. Bharati H. Dangre,J.)

1 Rule. Rule is made returnable forthwith and heard

finally by consent of the parties.

2 The present writ petition, filed by six medical

officers, seek directions to the Respondents to admit the

petitioners to the DHS CPS Courses 2017 and issue orders of

deputation to the petitioners so as to enable them to join in the

selected institutes, after treating them as "in service" quota

candidates for the DHS CPS Course.

3 The Petitioners before us are working as Medical

Officers with the Public Health Department of the State of

Maharashtra, on completion of their MBBS course. The

appointments of Petitioner Nos. 1, 2, 4 and 5 as medical

officers (permanent basis) in various hospitals run by the

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Respondent No.1 are of the year 2014; whereas the Petitioner

Nos. 3 and 6 have been appointed in the year 2015 and 2016

respectively. The State of Maharashtra with the purpose of

encouraging specialized health services has reserved certain

number of seats for the PG Diploma Course in favour of such

'in service candidates' and the Medical Council of India has

also prescribed certain percentage of reservation for such in

service candidates. The State Government through Public

Health Department on 17.07.2015 issued a Government

Resolution, thereby granting permission for running diploma

courses from the year 2015-16 in the hospitals run by the

public health department, for conducting diploma courses run

by college of physician and surgeon (CPS) Society. It

recognized total 8 diplomas to be conducted through the

hospitals run by the public health department. The

Government Resolution requires strict compliance of the

norms prescribed by the college of physician and surgeon and

the government resolution also stipulated that the medical

officers, obtaining diploma through the said course, would

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serve the public health department for five years, as bounded

candidates. It is pertinent to note that the said government

resolution was issued in view of the fact that various posts

of specialized doctors are lying vacant in the hospitals run

by the public health department. The medical education

department is making available 80 to 90 seats for the

diploma courses run by them for in service candidates.

However, taking into consideration the available vacancies of

the doctors, the said quota was not adequate and therefore,

permission was granted to conduct the diploma course

through the hospitals run by the public health department

through CPS.

4 For the year 2017-18 the public health department

through the Director of Health Services issued Information

Bulletin for admission to DHS Post Graduate Diploma Courses.

The said information Boucher was made available on

official website of the public health department from 17th

May, 2017. According to the said brochure, the NEET PG 2017

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examination was required to be passed by the candidates

applying for in service quota seats. The brochure contains

following clauses which are relevant for adjudication of the

present matter :-

"3. In-service NEET PG 2017 qualifying candidates who are eligible as per the current existing government norms need to apply for in-service quota of DHS CPS PG Diploma Courses 2017 admission process.

4. The in-service NEET PG 2017 qualifying candidates who are eligible as per the GoM GR .. dated 3rd May 2011, shall apply for 40% in-service quota.

5. The in-service NEET PG 2017 qualifying candidates who are regular/ permanent government employees but have less than 3 years of continuous government service shall also apply for 40% in-service quota of DHS PG Diploma 2017 admissions subject to future government decisions in this regard.

10. A separate merit list for in-service and private candidates will be prepared and displayed based on NEET PG -2017 score.

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11. The CPS PG Diploma Courses approved by the DHS are recognized by Maharashtra Medical Council."

4.8. In -service candidates :

4.8.1. For in-service candidates eligibility criteria will be as per the criteria fixed by GoM GR number ............ ...................... ...................... dated 3 rd May 2011 for DHS candidates i.e. M.M & H.S. candidate belonging to Group-A pay scale 15600-39200 Grade pay 5400/. ESIS in-service candidates' eligibility criteria will be as per the criteria fixed by GoM for ESIS candidates. The in-service candidates who have already submitted their verified service records for DMER 2017 admissions need not submit the records again for DHS PG Diploma 2017 admissions.

                     4.8.2.            The in-service    NEET PG 2017 qualifying 
                     candidates     who     are   regular   /   permanent 

government employees but have less than 3 years of continuous government service shall be considered eligible as in-service candidates for DHS PG diploma 2017 admissions subject to future government decisions in this regards. As proof of their candidature, such candidates should submit to

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DHS their service records through their respective CS /DHO and DDHS office.

4.8.3. In-service quota candidates must have appeared for NEET PG 2017 and declared eligible by NBE, New Delhi.

5 On 17th May, 2017, a notification was issued by the

Director of Health Services, inviting applications for DHS CPS-

PG, medical post graduate diploma courses for 2017-18. As

per the said notification the NEET PG 2017 qualified

candidates are held to be eligible to apply to the CPS courses

at its various district hospitals in the State of Maharashtra. It

is also mentioned that CPS courses are recognized by the

Maharashtra Medical Council and 40% seats are reserved for

in-service medical officers and 60% seats are reserved for

general eligible candidates. The notification also contains

following clauses in the form of Notes :

1) Only NEET PG 2017 qualified candidates will be considered for DHS PG Diploma 2017 admissions.

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2) The regular/permanent medical officers presently posted in public health department shall not apply for 60% seats reserved for private candidates.

Based on the above information brochure and the notification,

the petitioners had participated in the process for admission

to DHS CPS PG Diploma Courses, as in-service candidates. On

13.06.2017 the notice was issued, inviting the candidates, both

in-service and private for counseling at St. George's Hospital

Compound, P.D'Mello Road, Mumbai-400-001 on or before

09.06.2017. On 13th June, 2017 a provisional common merit

list for both in-service and general (private) candidates for

medical post graduate diploma courses for 2017 session was

displayed in which the name of all the petitioners appeared

based on their NEET Score. The category of their candidature

was mentioned as 'in-service' and they were shown to be

qualified. On 28th June,2017 the final common merit list of in-

service medical officers and private candidates for DHS CPS

PG Diploma Admission 2017 was published which included

the name of all the petitioners and their category was shown

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as 'in-service' candidates. However, in the remark column

following noting was made "candidates will be considered

for admissions for private quota due to the less than three

years regular government service."

It is the contention of the petitioners that 216 seats

were available for CPS courses, out of which 130 seats were

for private candidates/students and 80% seats were for in-

service candidates. Out of 86 in-service candidates 31

candidates were selected in the NEET Examination and the

final merit list of 37 candidates was published including the

petitioners.

It is to be noted that according to the petitioners,

the deputation orders were issued in favour of the 12 in-

service candidates, who had completed more than three years

of service and the petitioners were refused for admissions as

in-service candidates.

         6                 The matter was listed before us on 21.08.2017 and 

         on the said date, we   directed     the respondents to file   their 



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affidavit-in-reply. We passed interim order thereby, observing

that in view of the representations given by the respondents,

permitting the candidates who have not completed three

years of service, to be eligible as in-service candidates, the

petitioners orders of appointment and selection/ deputation to

continue until further orders.

Considering the urgency of the matter, we issued

notice of final disposal of the petition to the respondents,

making it returnable on 27th September, 2017 and heard the

matter finally.

7 We have heard learned counsel Mr. P.D. Paranjape

for the Petitioners and the learned government pleader Mr.

A.B. Vagyani, assisted by Mr. C. P. Yadav, Assistant

Government Pleader and the learned counsel Mr. Ritesh

Ratnam appearing for the Medical Council of India.

The petitioners would argue that by virtue of the

information brochure and the notification published by the

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respondents, they (petitioners) were made eligible to apply to

the DHS CPS Courses and accordingly they applied. Their

names featured in the provisional seniority list so also the final

merit list. However, at the time of publication of the final

merit list, the petitioners were directed to be treated as

private candidates instead of in-service candidates, for which

they had applied. The learned counsel for the petitioners

would argue that the rules of the game cannot be changed

after the game has begun and in spite of the fact that 2011

government resolution was already in existence, the Director

of Health Services, permitted the petitioners to apply as in-

service candidates though they had not completed 3 years of

service and their candidature was considered as in-service

candidates. However, at the fag end, while publishing the final

merit list their admissions were shown as in private quota

since they did not complete three years of regular government

service. According to the petitioners, an impression was given

that the State Government had relaxed the requirement of

three years government service in the information brochure as

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well as in the notification dated 17.05.2017 and hence, the

petitioners cannot now be denied the in-service quota and be

treated as private candidates.

8 As against the said contention Mr. Vagyani, learned

government pleader invited our attention to various riders

clauses in the brochure and according to him, the said brochure

makes a reference to the government resolution dated 3 rd

May, 2011 and according to him it was made clear under

clause no. 4.8.2. of the brochure that the in-service NEET PG

2017, qualifying candidates who are regular / permanent

government employees but have less than three y ears of

continuous government service, shall be considered eligible as

in-service candidates for the said diploma subject to the

future government decision in this regard. According to Mr.

Vagyani, the said admissions were only provisional and did

not confer any right upon the petitioners since they had not

completed three years of government service and they are not

entitled for admission as in- service candidates.

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Learned government pleader refers to the affidavit

filed by Dr. Umesh Shirodkar, Assistant Director, Health

Services Maharashtra, who has made a categorical statement

in para nos. 8, 10 & 14 to the following effect, quoted below :

"8. I say and submit that, the Directorate of Health Services realized during the state medical admissions conducted by Directorate of Medical Education and Research, Maharashtra that just 85 in-service medical officers have become eligible as per NEET 2017 result. Due to this there was a probability of many PG Diploma seats going vacant and would be lapsed for the current 2017 academic session. Directorate of Health Services has 2667 posts for specialist doctors out of which 1658 posts are filled and as many as 1009 posts are lying vacant. Considering that large number of post of specialists are vacant and it is affecting the rural, tribal and difficult areas, health services, it was decided to allow the in-service medical officers having less than three years of service to apply, subject to approval by the Government of Maharashtra.

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10. I say and submit that, as per the deliberations done in this regard, keeping in view of the various government resolutions, MCI regulation and varioius court decisions mentioned above it was decided that the in-service medical officers having less than 3 years of services can only be considered to be given admission as general /private candidates and not as in- service candidates. So the Directorate of Health Services incorporated this decision and displayed the final merit list on 20th June, 2017 clearly mentioning in front of the 15 in-service medical officers, having less than 3 years of service that they will be considered for admission under general /private quota seats only."

14. I say and submit that, due to unavailability of NEET qualified candidates the remaining 190 seats will go vacant and will lapse for the current academic year."

9 The respondent placed reliance on the decision

taken by the State Government on 19 th July, 2017, which was

placed on record by the petitioners by way of amendment. By

the said communication, section officer from the public health

department has informed the Director of Health Services

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with reference to the letter dated 01.07.2017 in relation to the

admissions to the DHS CPS Diploma Courses 2017 in respect of

candidates who have rendered less than three years of

government. By the said communication, attention is drawn

to Rule 80(5)(a) of the Maharashtra Civil Service Rules, 1981

and it is, thereby, informed that those medical officers who

have completed less than three y ears of service should not be

considered eligible for CPS PG Diploma Courses and if there

are other alternative options available for such students,

then proposal should be accordingly forwarded to the State

Government.

10 On consideration of the contentions advanced on

behalf of the petitioners and the respondents, certain

undisputed facts emerge. Respondent No.2 - Director of Health

Services, considering the situation that in NEET 2017 only 85

in-service medical officers had become eligible for the PG

admissions and there was possibility that PG diploma seats

would go vacant for the current 2017 academic session. The

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Director of Health Services on realizing that there are huge

number of posts for specialist doctors out of which almost

1000 posts were lying vacant, which was affecting the rural,

tribal and difficult areas. It was decided to permit medical

officers having less than 3 years of service to apply in 'in-

service quota' subject to the approval of the State Government.

The Director of Health Services indicated so in its information

Brochure. In the notification published on 17.05.2017, the

Director made it clear that the regular/ permanent medical

officers presently discharging in public health department,

shall not apply for 60% seats reserved for private candidates.

The conjoint reading of both these documents made the

medical officers less than three years of service eligible to

apply and by virtue of the notification the regular/ permanent

medical officers in the public health department would apply

only as in-service candidates for 40% seats reserved for

them.

Though the brochure mentioned that the said

permission would be subject to the final decision of the State

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Government in this regard, the candidates applied and their

names were displayed in the provisional merit list published

on 13.06.2017 after they were called for counseling. It is only

on 20.06.2017, the Director imposed the rider that such

candidates will be considered under the private quota since

their services are less than three years. It is note worthy to

mention that the State Government took the decision on 19th

July, 2017 and intimated the Director that the candidates

below three years of service as medical officers could not be

considered for the DHS CPS-PG diploma as in-service

candidates. However, it was too late in the day to submit its

decision when by that time the Director of Health Services had

already published provisional and final merit list. The

petitioners in view of the notification dated 17.05.2017

published by the Director could not have been considered as

private candidates and as there was a clear bar on the

employees of the State Government, filling up their forms as

private candidates. The net result is that though the Director

permitted the admission of the petitioners and it was after

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finalization of the list the State Government intimated the

Director-Respondent No.2, that it is not permissible to consider

the candidates below three years of service as in-service

candidates.

11 We are of the express opinion that the conduct of

the Respondent No.2, who was the competent authority for

conducting the admissions process to the DHS Post Graduate

Diploma Courses, has already given an impression to the

students to be eligible even in spite of the existence of the

government resolution dated 3rd May, 2011, prescribing

eligibility for in-service candidates. The candidates like the

petitioners cannot be at fault since they were aware of the

existence of the government resolution and that in spite of the

existence of the government resolution an impression was

given to them that these candidates who have less than three

years government service shall also apply and they shall be

considered as eligible. There is no merit in the contention of

the Government Pleader that the students were made aware

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that their consideration was subject to the decision of the state

government. We are of the clear opinion that when the

competent authority has completed the admission process by

displaying final merit list and the state government gave its

decision after the entire procedure was over as late as on 19th

July, 2017 putting the persons like the petitioners in

precarious situation, when they could not have applied as

private candidates and they are now not being treated as 'in

service candidates'. In service candidates have certain

benefits which include the exemption of fees, continuity of

their services and they are required to sign a bound to serve

the public health department for the period of two years,

failing which they are required to pay 5 lakhs in default.

Having that advantage in mind, the candidates like the

petitioners have applied as in-service candidates based on

information brochure which declared them to be eligible. The

State Government ought to have taken decision before the

finalization of the merit list and before the completion of the

process. The petitioners are left at a stage where they were

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helpless when their candidature is being treated as private

quota candidates; whereas their applications are not from that

category and they have certain benefits for availing in-service

quota seats. Perusal of the affidavit of the Assistant Director

filed before us, the Director has disclosed that out of 2667,

1009 posts / seats for specialized doctors are lying vacant in

the Directorate of Health Services, which is affecting the

health services in rural, tribal and difficult areas and therefore,

it had taken a decision to allow in-service medical officers

having less than three years of service to apply.

12 Reliance of the State Government on Rule 80 (5)

(a) of the Maharashtra Civil Services (Leave) Rules, 1981, is of

no consequence since it deals with the study leave and by

virtue of the said rule, the study leave shall not be granted to

a government servant who rendered less than five years

service in the government office/department. Perusal of the

Rule 80 sub-rule (3) makes it clear that the study leave shall

be granted when it is for prosecution of studies, a course of

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post -graduate study in medical sciences, if such study shall

be valuable in increasing the efficiency of such medical officers

in the performance of his duties. If that rule is applied with

then imposition of condition of three years of service in the

government resolution on 3.05.2011 is not sustainable.

However, we do not want to deliberate on the condition of

imposition of three years of service which is a policy decision

of the State Government and more over it is not a subject

matter of challenge before us.

We cannot shut our eyes to the fact that the State

Government is not able to provide for adequate medical and

health facilities in rural and remote areas and the State

Government is in dire need of specialized doctors in the field. If

the in-service candidates are offered opportunities of

improving their qualifications and they specialized themselves,

they would be an asset to the State Government since they

have to mandatorily serve the State Government for the bond

period and at least the government would be able to ensure the

services of such doctors to the citizens, specially residing in

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rural and hilly areas and ensure that the State discharges its

obligations.

A perusal of the government resolution dated

03.05.2011 which prescribes the modalities for admission to in-

service medical officers to pass graduate/diploma courses

reveals that the State Government by virtue of clause 1.28 of

the said Government resolution is empowered to effect any

changes in the said rules, containing the government

resolution without any intimation and it is also empowered to

effect any modifications to the said rules.

13 The petitioners who are in-service candidates

based their claim on legitimate expectations and they rely

upon the representations given by the government and

contend that its denial at the stage when their names are

already included in the final merit list is detrimental to their

interest. It is no doubt true that legitimate expectation is not

legal right. It is an expectation out of a bonafide belief or

remedy that may flow from an impression that is given and the

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expectations should be legitimate that is reasonable, logical

and valid. The doctrine of legitimate expectation is founded

on the principles of reasonableness and fairness though it is to

be different from anticipation. Such legitimate expectation

should be justifiable, practicable and protectable. The

restriction on the doctrine could not be invoked to block the

public interest nor it can be unfair to fitter changes in

administrative policy if it is in the public interest to do so.

14 In the present case, the existence of a policy by

the government was displayed in the information brochure by

the Director which referred to the government resolution on

3rd May, 2011 which prescribed the eligibility criteria for in-

service candidates, however, the same brochure treated the

in-service government employees having less than three years

of government continuous service as eligible in-service

candidates subject to the future decision of the government.

The legitimate expectation was crated when the name of the

petitioners were displayed in the provisional list and also in

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the final list as in-service candidates and it would be unfair

treatment to the petitioners who would be deprived of such

benefit at such a point of time when there is no turning back

for them.

15 We are conscious of the fact that the government

resolution dated 03.05.2011 is governing the field and it

requires completion of three years government service to be

completed as in-service candidates and we would not be

relaxing the said condition at all since according to us it has

rational behind it. Further, Respondent no.2, the competent

authority for conducting the admission process of the PG

Diploma Course, has given and created a clear hope in the

mind of the persons like the petitioners who have completed

less than three years government service and have made them

applied from in-service candidates quota and therefore, their

rejection is in violation of their legitimate expectation. The

petitioners are, therefore, eligible to be considered as in-

service candidates as an exceptional case for this year in view

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of the peculiar facts which we have already narrated above.

The relaxation of the government service below three years

shall not be treated as precedent but we expect the Director-

Respondent No.2, who conducts admission procedure, giving

clear communication about the eligibility and is expected to

consult the State Government before publication of the

brochure and the notification, making the candidates eligible.

16 In view of the aforesaid reasons, we are of the clear

opinion that the legitimate expectation was created in the

mind of the petitioners, in view of the conduct of the

respondents and the petitioners are entitled for being

considered as in-service candidates for admission to DHS CPS-

PG Diploma Course 2017 since they have already qualified

themselves in the NEET 2017 Examination. We direct that the

Petitioners are entitled for admission to the CPS DHS Diploma

Courses as 'in-service candidates for the year 2017-18 and the

Respondents are directed to the appointment orders and also

the deputation orders in favour of the petitioners so as to

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enable them to join the Institutes on the seats in which they

are selected.

17 In the result, we allow the writ petition in terms of

prayer clause (b)(i)(ii).

18 Rule is made absolute in the above terms. No order

as to costs.

(SMT. BHARATI H. DANGRE,J.) (ANOOP V. MOHTA,J.)

.....

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