Calcutta High Court (Appellete Side)
Dr. Anupam Mitra vs The State Of West Bengal And Others on 4 January, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 5592 of 2020
With
IA No. CAN 1 of 2020
(Old No. CAN 3346 of 2020)
Dr. Anupam Mitra
Vs.
The State of West Bengal and others
For the petitioner : Mr. Gazi Faruque Hassain,
Ms. Priyanka Mondal
For the
National Medical Commission : Mr. Indranil Roy,
Mr. Sunit Kumar Roy
For the WBMC : Mr. Saibalendu Bhowmick,
Mr. Biplab Guha,
Mr. Rajsekhar Basu
Hearing concluded on : 23.12.2021
Judgment on : 04.01.2022
Sabyasachi Bhattacharyya, J:-
1. The petitioner did his MBBS from the Burdwan University in the year
2003 and was registered with the West Bengal Medical Council.
Thereafter, allegedly, the petitioner has been practising medicine as a
General Duty Medical Officer at the Pancagram Rural Hospital under
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Diamond Harbour- I Block since November 6, 2012 for over seven
years. The petitioner terms the area of his work as a "remote area".
2. The petitioner took the National Eligibility cum Entrance Test - Post
Graduate 2020 (in short, "the NEET-PG") and secured a rank of
25296, with a score of 59l7 out of 1200 and a state wise combined
rank of 1145.
3. Reliance is placed on Clause 9 (2) (d) of the Postgraduate Medical
Education Regulations 2000 (in short, "the Regulations") the proviso
to which, after its amendment on November 17, 2009, reads:
i. " Further provided that in determining the merit and the
entrance test for postgraduate admission weightage in the
marks may be given as an incentive at the rate of 10% of
the marks obtained for each year in service in remote or
difficult areas up to the maximum of 30% of the marks
obtained. "
4. Upon giving such weightage, the petitioner argues, his score would
stand at 597 plus 30%, which comes to (579+179.1) = 776.1 and his
ranking in the state panel would be 215.
5. In terms of a notification dated February 26, 2020, issued by the
Special Secretary to the Government of West Bengal under the proviso
to Clause 9 (4) of the Regulations, the petitioner gave a representation,
first on March 16, 2020 and again, by an email dated March 28, 2020
to the Principal Secretary, requesting for being granted such incentive
marks as weightage allowable for an in-service doctor.
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6. The second round of counselling (allotment process) stared and the
final list for round 2 publication and seat matrix was scheduled on
June 23, 2020 and the results for allotment in round 2 were to be
published on June 30, 2020. Since the petitioner's request for being
considered as an eligible candidate and to come within the zone of
consideration for counselling by virtue of the 30% incentive had not
yet been considered, the present writ petition was filed on June 19,
2020.
7. Learned counsel for the petitioner contends that the petitioner has
been in service in a State Government hospital as a doctor in a remote
area for above seven years and is, thus, eligible to take the admission
test for the MD/MS/Post Graduate Diploma Courses upon the
improvement of his rank on the 30% incentive being given, in terms of
Clause 9 (2) (d) of the Regulations.
8. The West Bengal Medical Council ("WBMC" for short), as Respondent
No. 7 in the writ petition and the Medical Council of India ("MCI" in
short), being Respondent No. 8, who are the state medical council and
the parent body in the country respectively, contested the writ
petition.
9. All the contesting parties have filed written notes of arguments.
10. As per the contention of Respondent No. 7, the writ petition has
become infructuous since the Post Graduate Medical Education in
2020 Session has already started, with successful candidates
participating in different post graduate courses and having completed
a "good portion" of their study, thus excluding any scope of entry of
any student by disturbing the entire curriculum. For the proposition
no further relief can be granted in an infructuous writ petition,
learned counsel cites 2000 (2) SCC 439.
11. Respondent No. 7 further argues that the petitioner failed to
substantiate his case on merits and relies, in this context, on 2010
(10) SCC 677, 1988 (4) SCC 534 (Bharat Singh vs. State of Haryana).
12. It is denied that the petitioner has worked at a remote and/or difficult
area of the stage, as fixed by the State Government in their discretion
as per notification dated February 26, 2020. In such context,
Respondent No. 7 cites 2016 (9) SCC 749 (State of U.P. vs. Dinesh
Singh).
13. The writ petitioner, it is argued, could not substantiate his case that
he rendered service as an officer of the West Bengal Health Service
(WBHS) or of the West Bengal Public Health and Administrative
Service or the West Bengal Medical Education Service.
14. Learned counsel for Respondent No. 8 reiterates the submission that
the writ petition has become infructuous and rendered academic in
view of the fact that the last date for admission to Post Graduate
Medical Courses for the academic session 2020 was August 31, 2020
as directed the Supreme Court in M.A. No. 1282 of 2020 in Writ
Petition (C) No. 76 of 2015. The academic session, in fact, has
commenced from August, 2020 and almost one year and four months
have already elapsed thereafter. The admission process for the
academic session 2021 has already commenced, it is submitted. It is
argued that the Supreme Court has deprecated the practice of mid-
stream admissions to medical courses and held in several judgments
that the time schedule for admission to medical courses have to be
strictly adhered to. On the said proposition, learned counsel places
reliance on the following judgments:
(i) (2005)2 SCC 65;
(ii) (2002) 7 SCC 258;
(iii) AIR 2012 SC 2413; and
(iv) (2019) 7 SCC 38.
15. The petitioner has neither been an officer in any state service, nor has
he been posted in any "rural" or "remote and/or difficult" area. Thus,
learned counsel contends that the Notification dated February 26,
2020 (Annexure P/4 at page 17 of the writ petition) is not applicable
to the petitioner at all.
16. Upon hearing learned counsel for the contesting parties, the
document which acquires prime importance is the Notification dated
February 26, 2020, bearing No. HFW-23099/29/2019/373 issued by
the Special Secretary to the Government of West Bengal Health and
Family Welfare Department (Annexure P/4 at page 17 of the writ
petition).
17. As per the contemplation of the said Notification, weightage would be
given to the "in-service doctors who are the officers of the West Bengal
Health Service/West Bengal Public Health cum Administrative Service
/ West Bengal Medical Education Service serving in rural areas or
remote and/or difficult areas" in the manner as specified therein.
18. The State-Respondent itself denies in its arguments that the petitioner
was an officer in any of the aforementioned services. By way of proof,
the petitioner has produced a purported certificate dated March 23,
2020, issued by the Block Medical Officer of Health, Panchagram
Rural Hospital, Diamond Harbour Block - 1. Such document,
however, does not prove conclusively that the petitioner has been
posted as an officer within the contemplation of the February 26,
2020 Notification. The least that the petitioner ought to have done in
the teeth of the State's objection was to produce any document to
directly show such appointment. However, no such document has
been produced.
19. In his Supplementary Affidavit affirmed on September 21, 2020, the
petitioner has annexed Memo No. CMOH (SPG)/4407 dated October
16, 2012, apparently issued by the Chief Medical Officer of Health,
South 24-Parganas. Although the said document refers to selection of
the petitioner, among others, for engagement as "General Duty
Medical Officer", the said designation was qualified by the phrase "on
contractual basis". The petitioner was engaged for a State Govt.
Health Institution merely on contractual basis for a period of 11
(eleven) months only, on a "consolidated contractual remuneration" of
Rs.40,000/- per month.
20. The Attendance Register annexed to the Supplementary Affidavit of
the petitioner affirmed on July 24, 2020 pertains only to the month of
November, 2012. The "salary" slips annexed thereto, collectively as
Annexure "P7", are only in respect of two months, that is, December,
2012 and February, 2013. The Release Order annexed as Annexure
"P9" thereto was also issued by the CMOH, Diamond Harbour Health
District on March 31, 2017 and indicates that the petitioner
successfully completed a Medical Officers training course, conducted
from March 30, 2017 to March 31, 2017.
21. The period covered by the salary slips (P7) and release order (P9) are of
different periods and do not corroborate each other. Moreover, merely
being selected on contractual basis for a stray period of 11 months
does not bring the petitioner within the ambit of the Notification-in-
question, which envisages at least a year's completed service. Even the
two so-called 'salary slips' produced by the petitioner clearly exhibit
that he was paid merely 'monthly consolidated salary' and not any
other allowance. More importantly the "Deduction" head reflected only
professional tax, and not TDS/Income tax, EPF or any other
deduction which would normally be associated with a permanent
government service.
22. Even if the above considerations were to be brushed aside and the
benefit of doubt extended to the petitioner, the mere pleading in the
writ petition that the petitioner's location of service was a "remote
area" is insufficient to prove such component of his service. The
Notification under consideration has clearly defined the terms "rural
areas" and "Remote and/or Difficult Areas" as follows:
23. Explanation I of the Notification states that the term "rural areas"
means areas other than the areas under the jurisdiction of a
Metropolitan Area, Municipal Corporation, Municipality, Cantonment
Board, Notified Town Area Committee or Industrial Township
Authority and/or other Urban Local Bodies of the like as may be
prescribed/notified by the appropriate Government from time to time.
24. Explanation II stipulates that 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 Sundarbans under the jurisdiction of
the Sundarban Unnayan Parshad, (iii) the areas under the jurisdiction
of the Paschimanchal Unnayan Parshad and (iv) the areas under the
jurisdiction of the Uttarbanga Unnayan Parshad under the
Government of West Bengal.
25. There is no specific pleading and/or proof by the petitioner to
establish that Diamond Harbour Block-1, where he served as a doctor,
comes within the purview of either of the two definitions.
26. It is well-settled that the expressions "means" and "means and
includes" are exhaustive and specific in nature, unlike "includes" in
isolation, which may indicate an inclusive definition.
27. Thus, the petitioner has failed to satisfy any of the mandatory
yardsticks which are the pre-requisites of entitlement to the benefit
conferred by the Notification dated February 26, 2020.
28. Furthermore, as rightly pointed out by Respondent No. 8 (National
Medical Commission), there is nothing on record to establish that the
petitioner would come within the zone of consideration for admission
even if incentive marks were awarded to him. Thus, the petitioner has
merely taken a chance by filing the writ petition without clearly
disclosing any specific cause of action.
29. Although, as opposed to the stand taken by the contesting
respondents, mere delay on the part of the petitioner is insufficient to
defeat the petitioner's otherwise just cause, if any, since the petitioner
approached this court with the writ petition prior to completion of the
admission process for the 2020 session, in view of the facts of the
case, no such cause can be said to have been made out by the
petitioner in the instant case at all.
30. In such view of the matter W.P.A. 5592 of 2020 is dismissed on
contest. CAN 3346 of 2020 also stands disposed of consequently.
31. There will be no order as to costs.
32. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
