Sandeep Ashokrao Ragade vs The State Of Maharashtra Through ...
2023 Latest Caselaw 6354 Bom

                                     1                     WP / 3822 / 2023

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                         WRIT PETITION NO. 3822 OF 2023

Dr. Sandeep S/o Ashokrao Ragade,
Age : 35 years, Occu. : Medical Officer,
R/o : Medical Officer, Primary Health Center,
Nandar, Paithan,
Tq. Paithan, Dist. Aurangabad                                    .. Petitioner

         Versus

1] The State of Maharashtra
   Through its Secretary,
   Public Health Department,
   Mantralaya, Mumbai - 32

2] The Commissioner of Health Service,
   Mumbai,
   Arogya Bhavan, St. George's Hospital
   Compound, P.D'Mello Road,
   Mumbai - 400 001

3] The Director of Health Service,
   Arogya Bhavan, St. George's Hospital
   Compound, P.D'Mello Road,
   Mumbai - 400 001

4] The Deputy Director of Health Service,
   Aurangabad,
   Mahavir Chowk, Near Baba Petrol Pump,
   Railway Station Road, Aurangabad - 431 001

5] The District Health Officer,
   Aurangabad,
   Health Department, Zilla Parishad,
   Aurangabad                                                .. Respondents


                                      ...
 Advocate for petitioner : Mr. V.D. Sapkal, Sr. Advocate i/by Mr. S.R. Sapkal
     AGP for the respondents no. 1 to 5 - State : Mr. S.B. Pulkundwar
                                      ...

                        CORAM            : MANGESH S. PATIL &
                                           S.G. CHAPALGAONKAR, JJ.

                        RESERVED ON   : 14 JUNE 2023
                        PRONOUNCED ON : 05 JULY 2023




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                                       2                    WP / 3822 / 2023


JUDGMENT (MANGESH S. PATIL, J.) :

Heard.

2. Rule. Rule is made returnable forthwith.

3. At the joint request, the matter is heard finally at the stage

of admission.

4. In substance, the averments of the petitioner are to the

effect that he is a MBBS who was appointed as Medical Officer Class -

I on temporary basis at Rural Health Training Center, Paithan, District

- Aurangabad on 01.06.2016. He completed 5 years at the same post

satisfactorily. He was given a permanent appointment and posting at

Primary Health Center, Nandar, Tq. Paithan, District - Aurangabad with

effect from 01-07-2021, which he joined on 13-07-2021. Having worked

in the rural area for more than 3 years, he is entitled to derive the

benefit of weightage of marks as an in-service candidate in NEET-PG-

2023. When he approached the respondents with a request to grant

him no objection certificate it was refused for wrong reasons ignoring

the specific clauses 5.2, 5.5 and 6.3 of the Government resolution

dated 19-03-2019. Hence he has challenged the order refusing to

grant no objection certificate dated 23-01-2023 and has sought a

declaration to that effect.

3 WP / 3822 / 2023

5. The petitioner also claims that similarly situated candidate

by name Dr. Rupali Govindrao Shastri was found to be eligible. He also

claims that having faced with the situation, he appeared for the NEET-

PG-2023 examination and has secured 277 marks and is entitled to

additional 30% marks pursuant to the Government resolution dated 19-

03-2019.

6. Learned senior advocate Mr. Sapkal would take us through

the impugned order as also the Government resolution dated

19-03-2019. He would submit that a careful reading of the different

clauses of the Government resolution would reveal that independent of

clause 4 laying down different stipulation in respect of request for

seeking posting on deputation for the PG courses, clause 5 carves out

a separate category in respect of the Medical officers posted in rural

and difficult areas including tribal and naxalite areas. He would

emphasize that by virtue of clause 5.2 the service rendered in such

remote and difficult areas is to be counted for grant of grace marks

even if it was on temporary basis. When the petitioner has rendered

the services initially on temporary basis for a period of 5 years and,

thereafter has been made permanent again in a rural area, he is

entitled to tag both these services for claiming the benefit under clause

5.2.

4 WP / 3822 / 2023

7. Mr. Sapkal would, therefore, submit that the impugned

order refusing to grant no objection certificate to the petitioner does not

take into consideration these clauses 5.2 and 5.5 and, consequently, is

inconsistent with the Government resolution dated 19-03-2019. It is an

arbitrary exercise of the power and this Court should cause

interference in exercise of the powers under Article 226 of the

Constitution of India.

8. Per contra, the learned AGP referring to the affidavit in

reply filed by Dr. Mahananda Munde, Deputy Director of Health

Service, Aurangabad Region, Aurangabad would submit that petition is

misconceived and is not sustainable. He raised a preliminary objection

regarding availability of an alternate and efficacious remedy in the form

of the petition under section 19 of the Administrative Tribunals Act.

9. He would then submit that by virtue of clause 4.1, 4.2 and

4.4 of the GR dated 19-03-2019 the petitioner was not eligible to derive

the benefit under clause 5. He would submit that clause 4 speaks

about eligibility of a candidate whereas clause 5 pertains to a situation

where a candidate is eligible and is permitted to appear for NEET-PG

and it is only for the purpose of grant of grace marks under clause 5

that the resolution stipulates that even temporary service put in the

rural areas can be counted to make up 3 years.

5 WP / 3822 / 2023

10. He would submit that no such temporary tenure can be

counted while applying clause 4 which requires a candidate to put in 3

years of service in the permanent cadre. The petitioner has not put in

sufficient number of service. Service rendered by him on temporary

basis cannot be made up to find his eligibility under clause 4. The

learned AGP would further submit that in defiance to the mandatory

requirement of obtaining permission from the superior as contemplated

under clause 4.1, the petitioner has, on his own, appeared for the

NEET-PG-2023 without being eligible.

11. We have carefully considered the rival submissions and

perused the papers.

12. At the outset, it is necessary to mention that there is no

dispute about the fact that the petitioner has put in 5 years of

temporary posting at Rural Health Center, Paithan and, thereafter, was

given a permanent appointment and posting at Primary Health Center,

Nandar, Tq. Paithan where he joined on 13-07-2021. Therefore,

admittedly, he has not completed 3 years of service on a permanent

post. This is the precise reason quoted in the impugned order /

communication refusing him permission to appear for the NEET-PG-

2023 as an in-service candidate. Even his communication dated

10-01-2023 (Exhibit - E) mentions that as on the date of that

6 WP / 3822 / 2023

application he had barely put in just more than 1 year of service in the

permanent cadre.

13. With this let us understand the provisions of the GR dated

19-03-2019.

14. The GR dated 19-03-2019 is titled as 'Regulation For

Selection of In-Service Medical Officers from the cadre of Maharashtra

Medical and Health Services Group - A for Post Graduate Degree and

Diploma Courses'. After referring to the history in the preface it has

been mentioned that by superseding all earlier circulars pertaining to

the subject new resolutions are being made. Clause 4 lays down the

conditions / criterion for getting admitted for such PG diploma or

degree course. Clause 4.1 reads that prior permission of Deputy

Director of Health Services of the Division is necessary to appear for

such examination. Candidates who appear for examination without

permission will not be relieved for completing the course. Clause 4.2

then states that the Medical Officer should have been selected in a

regular selection process and must have completed minimum 3 years

of service in the regular appointment excluding the service rendered

under the bond period or as a temporary or contractual service. The

rest of the sub clauses are not relevant for the purpose.

15. Then clause 5 of this GR begins with the heading as to the

regulations for grant of grace marks / additional marks for serving in the

7 WP / 3822 / 2023

rural and difficult areas. Clause 5.2 lays down that a candidate would

be entitled to such grace marks / additional marks for having put in

service in the rural and difficult areas proportionate to the number of

years of such service. It specifically lays down that while counting such

years of service even the service rendered on temporary basis would

be admissible for grant of grace marks. The rest of the clauses further

lay down the modalities and entitlement of different candidates.

16. A careful reading of these clauses would clearly indicate,

as has been the stand in the affidavit in reply, clause 4 provides for the

modalities to be followed while considering the eligibility of a candidate

and the permissions to be obtained by him for appearing for the

examination. One can easily appreciate that a prior permission is

contemplated making it expressly clear that if a candidate appears for

the examination without prior permission he will not be relieved from

the posting. Meaning thereby that it is imperative for a candidate to

have a prior permission from the concerned Deputy Director of Health

Services. This clause does not deal with the allotment of any grace

marks for which a specific clause 5 has been inserted. It lays down the

manner in which and the marks to which a candidate would be eligible.

Unlike clause 5.2 which admits of even a temporary tenure to be

counted for allotment of grace marks, clause 4.2 expressly lays down

that for counting the minimum service of 3 years as the eligibility

criterion, the service rendered on temporary basis will not be counted.

8 WP / 3822 / 2023

17. Submission of Mr. Sapkal that Clause 5 also refers to the

eligibility of a candidate to appear as an in service candidate is not

tenable. Clause 4 refers to the eligibility of a candidate who appear as

an in-service candidate for the NEET-PG courses whereas clause 5

operates in respect of allotment of grace marks to such candidates. For

being eligible to appear for the examination a candidate must have put

in 3 years of service in regular cadre as has been laid down in clause

4.2 whereas once having appeared for the examination having been

found eligible and after obtaining the permission as contemplated

under clause 4.1, by virtue of clause 5.2 such candidate would be

entitled to grace marks and the years of service is to be counted

including that is rendered in rural and difficult areas in addition to the

regular employment.

18. When admittedly, the petitioner has not put in 3 years of

service in the regular cadre and had even not obtained previous

permission under clauses 4.2 and 4.1, respectively, the question of

grant of grace marks to him under clause 5.2 will not arise, even

though he has gone ahead and appeared for the NEET-PG-2023.

19. In the matter of Dr. Rupali Govindrao Shastri Vs. State

of Maharashtra (writ petition no. 3394 of 2018 decided on 18-04-2018)

the facts were totally different and even the GR dated 04-12-2017 was

in the field. Pertinently, while counting the service, there was a

9 WP / 3822 / 2023

provision for condonation of break and the past services rendered on

temporary basis were eligible to be counted. When, as is observed

herein-above, the Government resolution dated 19-03-2019 expressly

mentions in clause 4.2 that for ascertaining eligibility of a candidate, the

period of service rendered on temporary post cannot be counted, the

petitioner is not entitled to derive any benefit from the decision in the

matter of Dr. Rupali Govindrao Shastri (supra).

20. There is no merit in the writ petition. It is dismissed.

21. Rule is discharged.

 [ S.G. CHAPALGAONKAR ]                          [ MANGESH S. PATIL ]
          JUDGE                                        JUDGE

arp/