Satyabrata Gayen And Others vs State Of West Bengal And Others
2022 Latest Caselaw 467 Cal

10th February, 2022 (D/L No.04) (SKB)

WPA 1648 of 2022 (Via video conference)

Satyabrata Gayen and others Vs.

State of West Bengal and others

Mr. Bikash Ranjan Bhattacharya, Mr. Suman Banerjee ... for the petitioners.

Mr. Samrat Sen, Mr. Supriyo Chattopadhyay, Mr. Suman Dey ... for the State.

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

The 44 writ petitioners are NEET-PG, 2021

qualified candidates who seek to get admission to

Medical Post-Graduate courses offered by colleges in

the State of West Bengal. The petitioners have assailed

a Corrigendum published by the State Department of

Health and Family Welfare to an earlier Notification

with regard to in-service quota dated 8th October,

2021.

The fulcrum of challenge is that the Department

has introduced Covid-19 related duties as part of the

requirement of service in "difficult areas" for availing

the benefits of reservation.

According to learned counsel appearing for the

petitioners, the Corrigendum extends the cut-off date

for assessing the eligibility criteria for those who serve

in rural/remote/difficult areas from 30th April, 2021 to

31st December, 2021 without any intelligible reason.

Counsel also submits that the rules of game cannot be

changed after the petitioners entered into the zone of

consideration for being considered for the in-service

quota. The petitioners pray for setting aside of the

Corrigendum dated 25th January, 2022 and for a fresh

counselling process in terms of the Notification dated

8th October, 2021.

Learned counsel appearing for the State opposes

the prayer on the ground that the Notification of 8th

October, 2021 was justifiably amended and relies on

relevant facts in support of the said contention.

Counsel submits that the petitioners have not suffered

any prejudice by reason of the impugned Corrigendum.

Learned counsel appearing for the National

Medical Commission indicates the relevant dates in the

schedule of counselling for NEET-PG, 2021, as

published by the Directorate of Medical Education on

25th January, 2022. Counsel relies upon a decision of

the Supreme Court in Vidhi Himmat Katariya and

others vs. The State of Gujarat and others reported in

(2019)10 SCC 20 with reference to the allegation that

the rules of the game have been changed for the

petitioners in the present case.

Upon hearing learned counsel appearing for the

parties, the challenge in the writ petition appears to be

essentially on two counts. First, whether the cut-off

date for the eligibility criteria for in-service doctors

serving in rural/remote/difficult areas could be

extended from 30th April, 2021 to 31st December, 2021;

and second, whether the Department could have

brought Covid-19 related duty as part of the

requirement for service in difficult areas.

The answer may be found in the Corrigendum

itself with regard to the first ground of challenge,. The

Corrigendum clearly states that the cut-off date is

being extended to 31st December, 2021 for the

academic session 2021-2022 by reason of the fact that

the NEET-PG, 2021 Medical State quota counselling for

2021-2022 in West Bengal shall only begin in January,

2022. The Corrigendum further makes it clear that the

extension is only for the 2021-2022 academic session

and is being made as a one time relaxation without

creating any precedent for the future in any manner

whatsoever. The reason given in the Corrigendum

explains the reason for extension of the cut-off date

and the Court does not find any arbitrariness in such

extension. The first challenge to the Corrigendum is

accordingly found to be without basis.

With regard to the second challenge, namely

inclusion of Covid-19 related duty within the zone of

eligibility for the in-service quota, several factors are

relevant. The concept of "difficult area" has been

defined in Explanation II of the Notification dated 26th

February, 2020 to mean certain geographical areas

which would clarify as remote or difficult. Factually,

there is little doubt that serving as the frontline

workers during the pandemic would satisfy the obvious

meaning of "difficult". There cannot be any other way

of assessing the committed service rendered by doctors

in the fight against Covid. The question is whether the

State was empowered to add Covid-19 duties to the

"difficult areas" definition. The answer can be found in

the 5th paragraph of the Notification dated 8th October,

2021 which empowers the Department to modify the

definition of rural/remote/difficult area from time to

time as per the emergent situation. Since this Court

finds that there can be no factual dispute as to the

necessity of bringing in Covid-19 related duties within

the definition as on 25th January, 2022 when the

country was in throes of the third wave of the

pandemic, the second challenge is also found to be

without basis.

It is also curious that the petitioners have not

challenged the Notification dated 8th October, 2021

which is the starting point of the requirement of service

in rural/remote/difficult areas for three years

pursuant to a judgment of the Supreme Court in Tamil

Nadu Medical Officers' Association Vs. Union of India

and others reported in (2021)6 SCC 568. The

probable reason may be that the 8th October, 2021

Notification curtailed the zone of consideration only to

those in-service doctors who had rendered three years

service in rural/remote/difficult areas while the

Corrigendum extended the zone to bring in Covid-19

related duties. The petitioners hence thought it

prudent not to challenge reducing of the pool-pie as on

8th October, 2021 but challenged the Corrigendum

when the same pie added an extra slice to expand the

zone of consideration on 25th January, 2022.

The question whether the Department changed

the rules of the game to prejudice the petitioners would

be evident from some relevant dates. The petitioners

qualified in the NEET-PG, 2021 examination in

September, 2021 for the academic year 2021-2022.

The Schedule published by the Directorate of Medical

Education indicates that the counselling process for

NEET-PG, 2021 commenced on 25th January, 2022

followed by registration, verification and admission of

the candidates in the allotted colleges. The

verification process concluded on 8th February, 2022.

Round 1 of the counselling ended on 9th February,

2022. Round 2 of the counselling process is scheduled

to start from today i.e. 10th February, 2022. The logic

against changing the rules of the game is an extension

of the duty of fair play so that candidates who have

participated in a selection process on the basis of

eligibility criteria existing as on the start-date are not

faced with an unfair exclusion from the race midway to

the selection or after the process is concluded. The

reason is that candidates should not be at the

receiving end caused by a change of policy without

being given an opportunity to meet the changed

criteria. In Vidhi Himmat Katariya (supra), the

Supreme Court disagreed that the rules had been

changed and held that the rule cannot be changed

after the relevant time the candidate sought admission

in the medical course under the Persons with

Disability category. In accordance with Vidhi Himmat

Katariya, in the present case, the rules of the game

cannot be changed after 2nd February, 2022 when the

in-service candidates were to get admission in the

allotted colleges as per the schedule published by the

concerned authority. In K. Manjusree Vs. State of A.P.:

AIR 2008 SC 1470, the entire selection was completed

and new names were added to the final list.

Hence, the facts in the present case do not show

that the rules of the game were changed to the

detriment of the petitioners at a stage when the

petitioners' eligibility criteria had already been

assessed. The petitioners have already participated in

the first round of counselling and it is not the

petitioners case that they have been left out of the

process by reason of the impugned Corrigendum dated

25th January, 2022. The petitioners would have had

an arguable case if the 25th January, 2022 Notification

excluded the petitioners from the zone of consideration

altogether. Since no such case has been made out in

the present writ petition, this Court is not inclined to

grant the relief as prayed for.

W.P.A.1648 of 2022 is accordingly dismissed.

There will be no order as to costs.

(Moushumi Bhattacharya, J.)