Calcutta High Court (Appellete Side)
Srijani Roy vs The State Of West Bengal on 15 February, 2022
15.02.2022 MAT 24 of 2022
with
Court
Item
: 04
: 01
CAN 1 of 2022
Matter : MAT
Status : DISMISSED
Transcriber: nandy
Srijani Roy
Vs.
The State of West Bengal
Mr. Anindya Lahiri, Advocate
Ms. Pranati Das, Advocate
......for the Appellant
Mr. Swapan Kumar Dutta, Advocate
Mr. Pradyut Kumar Das, Advocate
......for the State
Mr. Indranil Roy, Advocate
Mr. Sunit Kumar Roy, Advocate
......for the National Medical Commission
Ms. Rini Bhattacharya, Advocate
......for the Union of India
Mr. D.N. Maity, Advocate
......for the Respondent No. 6
Challenging the order dated December 13,
2021 passed in WPA 17671 of 2021 by which the
writ-petition was dismissed not only on the
ground of the locus of the writ-petitioner/appellant
but also the plea of discrimination was ruled out.
The challenge was made to a Notification
dated October 8, 2021 issued by the Government
pertaining to the tenure/duration of three years of
service in rural/difficult/remote areas as eligibility
criteria as ultra vires to the Constitution. The point
of demur was taken by the counsel appearing for
the National Medical Council to the extent that the
petitioner coming under the purview of open
category is not entitled to challenge such
notification restricted to a in-service category
candidate. The Single Bench further held that
such notification dated October 8, 2021 is
relateable to in-service quota in post-graduate
medical and dental and post-doctoral medical
counseling for the State quota seats in
Government were in tune with the judgment of
the Five Judge Bench of the Supreme Court in
case of Tamil Nadu Medical Officers'
Association & Anr. -vs- The Union of India &
Ors. reported in 2021 (6) SCC 568 and therefore,
cannot be said to be ultra vires. However, the
Single Bench further held that the plea of
discrimination raised in the writ petition is not
entertainable as the further notification dated
June 10, 2014 has not been challenged.
The sub-stratum of the impugned judgment
is based on locus of the petitioner who
challenged the notification dated October 8, 2021,
which is restricted to in-service quota in the
aforesaid courses.
Mr. Lahiri prevaricates his stand which he
initially took before the Single Bench and harps
upon the point that the fixation of a percentage
reserved for in-service quota is arbitrary,
whimsical, irrational, unreasonable and
discriminatory in nature and, therefore, even if the
petitioner offering his candidature in the open
category quota, can challenge such notification
as it abridges the number of seats required to be
reserved in open category quota and, therefore,
the petitioner has a locus standi to challenge
such notification.
The entire argument of the Counsels are
founded upon the observations and the ratios laid
down in case of Tamil Nadu Medical Officers
Association (Supra) and reliance is placed upon
the observations made therein, in several
paragraphs in pursuit of the ultimate decision.
It is no longer res integra that the power of
regulating the education emanates from List III
Entry 25 of Schedule VII of the Constitution of
India providing a concurrent power both to the
State and the Union. There is no conflict between
the powers of the Union and the State as the
occupied field of the Union Legislation is relatable
to a minimum standard of the medical education
of the State to provide in-service quota without
infringing and/or violating the prescribed minimum
standards. The power of the State in relation to
the subject matter of public health and hospital
emanates from List III Entry 6 of Schedule VII of
the Constitution of India which is exclusive. In
exercise of such Constitutional power having
reserved upon the State, the West Bengal State
Health Service Act, 1990 was promulgated
reserving rule making power and in fact, in
exercise of such powers, rule was framed
imbibing the reservation in the seats of the
medical courses of the State Universities for its
officers under the West Bengal Health Service
Act.
There has been a considerable debate and
spat of litigation started pouring in different High
Courts pertaining to a reservation having put forth
in service quota. Ultimately, the writ petition was
filed before the Supreme Court under Article 32 of
the Constitution of India, where the notifications
issued by the respective States earmarking the in
service quota was under challenge. The point
also emerged in course of the hearing pertaining
to the power of the State to make a reservation
and an argument was advanced that the same is
arbitrary, discriminatory and violative of Articles
14 and 19(1)(g) of the Constitution of India.
The Constitutional Bench held that the
action of the State to provide for in service quota
is in discharge of its constitutional obligation to
bring better health care facilities for its citizens by
upgrading the qualifications of the existing in
service doctors so that the citizens may get more
specialised health care facilities, which is one of
the ordain under Article 47 of the Constitution of
India. Ultimately, the Apex Court held that the
legislative competence of the State or authority to
provide the separate source of entry in the post-
graduate degree/diploma courses for in-service
candidates is eminent and evident from the
powers reserved under the Constitution as well
as in exercise of the powers provided in List III
Entry 25 of Schedule VII of the Constitution of
India.
However, the Constitutional Bench
observed that such candidates who have excelled
the academic knowledge and benefited under the
in-service quota must serve in rural, tribal and
hilly areas of the respective states for a specified
years upon obtaining the degree/diploma and if
necessary they have to execute a bond. The
observation made in paragraph 23.8 of the said
judgment is quoted below :-
"23.8. That the State has the legislative competence and/or
authority to provide for a separate source of entry for in-service
candidates seeking admission to postgraduate degree/diploma
courses, in exercise of powers under List III Entry 25. However,
it is observed that the policy must provide that subsequent to
obtaining the postgraduate degree by the in-service doctors
concerned obtaining entry in degree courses through such
separate channel serve the State in the rural, tribal and hilly
areas at least for five years after obtaining the degree/diploma
and for that they will execute bonds for such sum the
respective States may consider fit and proper."
There is no incongruity in the legislative
powers and competence of the State to provide
separate channel and path in such post-graduate
courses for the candidate coming under the in-
service quota which would further be evident from
the object and the purpose for which the health
sectors in the country are facing a gruesome time
in the recent past during the declaration of
pandemic as held by the Constitutional Bench
over the legislative competence and the powers
of the State to set up a separate in-service quota.
It is arduously submitted before us that
there is no rationale nor intelligible differentia for
setting up of 40% seats for the in-service quota.
The power to create in- service quota is within the
domain of the State emanating from the
Constitutional provisions and, therefore, it is
within the competence of the State to fix a
percentage of the seats earmarked for in-service
quota. Obviously, while fixing the percentage
various factors are taken into consideration and
the moment the State has decided to fix the
percentage, the Writ Court should be slow and
circumspect in interfering with the same unless it
shock the conscience of the Court. In other
words, there must be a strong evidence to be
produced eroding the decision for fixing a
percentage more particularly, for the lack of
intelligible reasons. Unless the decision of the
State appears to be unreasonable, irrational,
such decision cannot be interfered with.
Impetus can also be seen from the
Constitutional Bench decision where a
memorandum dated April 18, 2013, wherein such
percentage fixed, was restored. Logical inference,
which can be drawn therefrom, is that the said
memorandum dated April 18, 2013 is restored in
its entirety and the contents thereof was not
interfered with.
The present appellant has not made out any
case for interference in fixing of the percentage
for in-service quota, nor any documentary
evidence has been produced in this regard.
The reason for not interfering with the
notification dated October 8 2021 can further be
seen from another co-ordinate Bench decision in
case of Tania Mukherjee & Ors. Vs. The State
of West Bengal & Ors. (in MAT 146 of 2022
decided on February 10, 2022) wherein some of
the in-service candidates challenged the
aforesaid notification and the Division Bench held
that such notification have, in fact, recited the
observation of the Constitutional Bench of the
Supreme Court in Tamil Nadu Medical Officers'
Association (Supra) and therefore, cannot be
termed as ultra vires. The judicial discipline
demands respect and adheres to a Constitutional
Bench decision, unless the Court finds the same
to be contrary to the statutory rules or the settled
law accompanying the field. Even in such cases,
it is open to the Co-ordinate Bench to refer the
matter to the Chief Justice to constitute a larger
Bench. Since, the aforesaid notification has been
found in tune with the statutory provisions,
legislative competence and in furtherance of the
Constitutional Bench decision, we do not find any
justification in taking a different view to what the
Co-ordinate Bench has already been taken.
On the basis of the findings made
hereinabove, we do not think that the petitioner is
entitled to the relief claimed in the writ petition
even without venturing to go into the plea of
demur raised by the National Medical
Commission.
We, thus, do not find any merit in the
impugned appeal.
The same being MAT 24 of 2022 is hereby
dismissed without any order as to costs. The
connected application being CAN 1 of 2022 also
stands dismissed.
(Harish Tandon, J.)
Rabindranath Samanta, J.)
