Dr. Sourav Chattopadhyay & Ors vs State Of West Bengal & Ors
2021 Latest Caselaw 2041 Cal

17.03.2021 41 and 42 ns Ct.04 M.A.T. 773 of 2020 with I.A. CAN 1 of 2020

Dr. Sourav Chattopadhyay & Ors.

Vs.

State of West Bengal & Ors.

And

M.A.T. 774 of 2020 with I.A. CAN 1 of 2020

Dr. Moitreyee Chowdhury & Ors.

Vs.

State of West Bengal & Ors.

Mr. Subir Sanyal, Mr. Amiya Kr. Dutta, Mr. Swadesh Priya Ghosh .... for appellants.

Mr. Indranil Roy, Mr. Sunit Kumar Roy .... for National Medical Commission.

Mr. D. N. Maiti ... for W.B.U.H.S.

Mr. Swapan Kumar Dutta, ld. A.G.P., Mr. Sirsanya Bandyapadhyay, Mr. Arka Kumar Nag, Mr. Tapas Kumar Dey Ms. Soumi Guha Thakurta .... for State.

Two appeals have been heard analogously, one

after the other, though record of proceedings in order sheet

carry both cause titles. Here we must make correction of a

typographical error crept into order dated 9 th March, 2021.

References to Mandamus Appeal Tender (MAT) numbers

have been incorrectly recorded. The first reference is MAT

774 of 2020 and the second reference is MAT 773 of 2020.

Said order be read as corrected.

Mr. Sanyal, learned advocate appears on behalf

of appellants in both appeals. In MAT 773 of 2020, there

are five appellants, of whom three have got admission for

post graduate course study. In MAT 774 of 2020, there are

three appellants, of whom none got admission. Also, these

three appellants were not entitled to and did not get

incentive marks, given pursuant to notification dated 26 th

February, 2020, under challenge in both writ petitions and

dealt with by impugned judgment dated 10th November,

2020. All except one petitioner, in the two writ petitions,

are before us as appellants.

Mr. Sanyal formulated his point to be that

object of Medical Council of India Postgraduate Medical

Education Regulations, 2000 is to select on merit.

Affidavits filed by State in the two writ petitions are silent

regarding the thought process behind issuance of the

notification, to give weightage by incentive marks, for

service in two categories of places in the State, being 'rural'

and 'remote and difficult' areas. Rural areas are defined as

certain areas on exclusion of mentioned areas. A separate

category being remote and difficult areas would necessarily

have to be added areas to rural areas but cannot include

said excluded areas.

He relied on order dated 15th December,

2017 in Petitions for Special Leave to Appeal C no.

11692/2017 (Dr. Amit Bagra and Ors. vs. State of

Rajasthan and Ors.), paragraph 1 and extracted

paragraphs 10, 11 and 13 to 15 from said Court's

judgment dated 25th May, 2017 in Narendra Soni vs.

State of Haryana reported in (2017) 14 SCC 645.

We had noticed from the quoted paragraphs

that in Narendra Soni (supra), Supreme Court said about

identification of areas as made without basis or on no data.

We required State to produce additional evidence, on

affidavit, to enable us to pass judgment in the appeals.

State filed two affidavits. Data given in the two affidavits

were treated as additional evidence in appeal, on there

being no dispute in regard to it.

Mr. Sanyal pointed out from the first affidavit

that there are statements regarding in service doctors, who

had served in Bankura Sammilani Medical College (BSMC)

and Midnapore Medical College (MMC), of their incentive

marks deducted. He clarified, existing provisions /

dispensation relating to reservation of seats for in service

Government doctors operated in terms of document dated

18th April, 2013, referred in memo dated 4 th March, 2020,

issued by Government of West Bengal, Health and Family

Welfare Department. Said memorandum had done away

with reservation of seats for in service doctors from

academic session 2020, reviving the existing provisions.

Notification dated 26th February, 2020, impugned in the

writ petitions, gave weightage to in service doctors serving

in rural areas or remote and / or difficult areas, in manner

stated therein. Some of his in service doctor clients have

served in rural areas, given meaning by explanation I in

impugned notification. Rest of his clients are, as aforesaid,

not entitled to incentive marks under the notification. The

dispute is elsewhere. It is with regard to explanation II in

the notification. Explanation II is reproduced below:

Explanation II : The term "Remote and/or Difficult Areas" means and includes (i) the hill areas (demarcated by the region as defined in Section 2(o) of the Gorkhaland Territorial Administration Act, 2011); (ii) the areas of the Sunderbans under the jurisdiction of the Sunderban Unnayan Parshad, (iii) the areas under the jurisdiction of the Paschimanchal Unnayan Parshad and

(iv) the areas under the jurisdiction of the Uttarbanga Unayan Parshad under the Government of West Bengal."

He submitted, his clients are questioning, particularly,

inclusion of areas under jurisdiction of Paschimanchal

Unnayan Parshad and areas under jurisdiction of

Uttarbango Unnayan Parshad, to be either remote or

difficult areas. On that basis, challenge to the entire

notification. He relied on paragraph 10 in the writ petition.

Statements made therein are reproduced below:-

"10. Your petitioners submit that the classification of the remote and/or difficult areas or Rural areas has not been made following the guidelines laid down by the Hon'ble Suprme Court in the Dr. Amit Bagra vs. the State of Rajasthan case vide no. Special Leave to Appeal C No. 11692/2017 Date of Order : 15.12.2017 ascertained that this demarcation of rural remote and difficult areas should follows guidelines and should not be arbitrary one....."

On behalf of appellants, following was culled

out from data given in the second affidavit filed by State.

We give below two charts. The first is regarding those

candidates who, according to appellants, ought not to have

received incentive marks. The second is chart showing

original and aggregate marks obtained by appellants in

MAT 773 of 2020.

      Name           Original marks          Aggregate marks
  Goutam Dhali             242                    314.6
   Saurav Das              655                    851.5

     Verma

   Avijit Jana                354                   460.2
 Debanjan Roy                 605                   786.5
 Dipankar Das                 345                   448.5
   Kasem Ali                  331                   430.3
Nannika Pradhan               346                   449.8
  Parvez Wasif                544                   707.2

     Imam

 Santanu Halder               407                   529.1





 Shampa Mondal              381                  495.3
 Srikanta Halder            411                  534.3
 Subhamoy Mal               497                  646.1


     Name            Original marks       Aggregate marks
 Anindya Saha              484                 629.2
  Jayanta Das              441            485.1 (one year)
 Sayantan Rout             489                 635.7

 Chattopadhyay

   Syamantak                553                  718.9
   Chakraborty



            Mr.    Sanyal     submitted   with    reference   to

impugned judgment, particularly paragraphs 46, 47 and 49

to 51. First Court erred in taking the view that the second

explanation adds remote and / or difficult areas to rural

areas to comprise entire body of areas, for which incentives

/ weightage shall be granted, as being clearly in terms of

the proviso to clause 9(4) of the Regulations. Guidelines or

binding criteria were laid down by Supreme Court in

Narendra Soni (supra) and Amit Bagra (supra).

Development cannot be confined to remote or difficult areas

only. Development can happen in urban areas as well, let

alone municipal areas. As such, impugned judgment is

wrong on view expressed that since development was taken

to be a yardstick, in classifying such areas, which is

undoubtedly an intelligible differentia and has close nexus

with the object of the 2000 Regulations, it would be

improper for Court to impose its views with regard to such

yardstick. He also relied on views of a Division Bench of

this Court in Sandip Santra vs Papiya Biswas reported in

2013 (2) CHN 27, paragraphs 59 to 61 65 and 66.

Mr. Bandopadhyay, learned advocate and

Junior Standing Counsel, led by Mr. Dutta, learned

advocate and Additional Government Pleader appearing on

behalf of State submitted, data given in the affidavits show,

incentive marks were duly given in terms of impugned

notification. As correctly found by first Court, impugned

notification is pursuant to sub-regulation (4) in regulation

9 of the 2000 Regulations. 3 appellants were not entitled

to incentive marks and there is no dispute in that regard.

Of 5 other appellants, all got incentive marks and 3 of them

have also got admission. The remaining two cannot

complain since, he reiterated, they did get incentive marks.

Referring to Amit Bagra (supra), he submitted, Supreme

Court had quoted from Narendra Soni (supra) as

reproduced below.

"Thus an extremist affected district could be as much a problem as distance, but if the facility is an urban or peri-urban area then it would not be the central issue in getting a doctor to that facility. This is based on an understanding that lack of willingness to work in remove areas is due to a combination of economic loss, social and (from community and family and professional isolation and not so much of a problem as distance from an urban area. The criteria for difficulty should be

measurable enough to withstand legal and political contestation, but there would be exceptions that need to be made and these could be made by addition of further qualifying rules and flexibilities that would be defined in writing wherever needed."

He submitted, said Court said that identification and

criteria will, inter alia, vary from State to State to some

extent, despite identification of certain common criteria.

Mr. Roy, learned advocate appeared on behalf

of National Medical Commission and adopted submissions

made by Mr. Bandopadhyay. He added, with reference to

Final Combined Eligible Candidate List with Serial Number,

only a few pages in the list disclosed by appellants in the

writ petitions, there are several candidates under serial

numbers and ranks, whose names have been omitted as

not appearing on the disclosed pages in the list. One of the

appellants, Dr. Partha Sarathi Ray, who did not get

incentive marks, obtained total marks 623 and rank 999.

Another two appellants, both in service doctors, got

respective 436 and 432 marks to have ranked 1824 and

1838. These three appellants did not get incentive marks

as were not entitled to get them. Even if 14 candidates, who

according to appellants, were allegedly wrongly given

incentive marks though they had served in super speciality

hospital or sub-divisional hospitals located in municipal

areas, have their incentive marks deducted, it will not raise

the ranks of appellants for purpose of those of them who

did not get admission, to become eligible for it. As such,

the writ petitions are vexatious and there should be no

interference, more so, since we are seven months into

commenced current academic year. He relied on following

sentence from Amit Bagra (supra):-

"Without commenting on merits of the case, in the circumstances, we dispose of these special leave petitions and hold that the admissions made for the present academic year shall not be disturbed......."

Mr. Bandopadhyay adopted the submissions made in

addition by Mr. Roy.

The controversy is regarding categories (iii) and

(iv) areas under explanation II of impugned notification.

Sub-regulation (4) in regulation 9 had

amendments made to it by substitution, firstly in terms of

notification dated 21st December, 2010. Thereby

reservation of seats was made for respective categories as

per applicable laws prevailing in States / Union Territories.

A proviso was added by notification dated 15 th February,

2012. The proviso introduced weightage in marks of in

service candidates as incentive @10% of the marks

obtained for each year of service in remote and / or difficult

areas, up to the marks of 30% of the marks obtained in

National Eligibility-cum-Entrance Test (NEET). Inter alia,

sub-regulation (4) was again substituted by notification

published on 5th April, 2018. The substituted sub-

regulation (4), as it stands today and applicable to the case,

is reproduced below:-

"(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."

On query we have ascertained from Mr.

Bandopadhyay that Paschimanchal Unnayan Parshad was

formed by Paschimanchal Unnayan Development Affairs

Department on 18th May, 2000. Uttarbango Unnayan

Parshad was formed by the Home Department on

notification dated 8th July, 2011. These two categories of

areas were demarcated for purpose of development and the

administrative exigencies in relation thereto. In tracing the

history of the sub regulation, we find weightage by

incentive marks was introduced under notification dated

15th February, 2012. Remote and difficult areas were said

to be 'as shall be defined by State Government / competent

authority from time to time'. This was carried in the

substituted sub-regulation, as included in the proviso.

Appellants have clarified that for the selection to current

academic year course study, existing provisions as in

document dated 18th April, 2013, referred in memo dated

4th March, 2020 were applied.

The sub-regulation mandates remote and / or

difficult areas to be as defined by State Government /

competent authority. There is no challenge to the

demarcation made of the two categories, being

Paschimanchal Unnayan Parshad and Uttarbango

Unnayan Parshad, as defined by the State Government

through its respective departments. The demarcation of

rural and remote and/or difficult areas were made by

respective departments prior to 15th February, 2012. The

sub-regulation does not say that the definition of the areas

to be given by the State Government/competent authority

has to be pursuant to it.

The contention has been that these areas

include municipal areas and therefore cannot be said to be

either remote or difficult areas. Here we accept reliance by

Mr. Bandopadhyay on the extract from Narendra Soni

(supra) in Amita Bagra (supra), as quoted above. Supreme

Court referred to basis of understanding that lack of

willingness to work in remote areas is due to a combination

of factors and not so much of a problem as distance from

an urban area. We are not persuaded by view taken in

Sandip Santra (supra) as it related to provisions in

regulation 9(2)(d) of the Regulations and consequential

Government notification dated 23rd November, 2011. The

Division Bench confirmed finding of the first Court in that

the Government notification could only be prospective.

For reasons aforesaid, there is no case for

interference with impugned order. The appeals and the

applications are dismissed.

(Arindam Sinha, J.)

(Suvra Ghosh, J.)