Gauhati High Court
Page No.# 1/22 vs The State Of Assam And 8 Ors on 11 March, 2025
Page No.# 1/22
GAHC010007732025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/186/2025
DR. SAMARJIT CHAKRABORTY AND ANR
SON OF SUDHANGSHU CHAKRABORTY, RESIDENT OF VILLAGE-
KARIMGANJ WARD NO. 1, P.O. AND P.S. KARIMGANJ, PIN- 788710,
DISTRICT- SREEBHUMI, ASSAM
2: DR. HRISHIKESH BARUAH
SON OF DR. RABIN CHANDRA BARUAH
RESIDENT OF RUPNAGAR
P.O.- RUPNAGAR
P.S. BANGAGARH
PIN- 781032
DISTRICT- KAMRUP (M)
ASSA
VERSUS
THE STATE OF ASSAM AND 8 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY, HEALTH AND FAMILY
WELFARE DEPARTMENT, GOVERNMENT OF ASSAM, DISPUR, GUWAHATI,
ASSAM, PIN- 780006
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT OF ASSAM
DISPUR
GUWAHATI
ASSAM
PIN- 780006
3:THE SELECTION BOARD
REPRESENTED BY ITS CHAIRPERSON- THE DIRECTOR OF MEDICAL
EDUCATION CONSTITUTED UNDER RULE 11 OF THE MEDICAL COLLEGES
OF ASSAM (REGULATION OF ADMISSION INTO POST GRADUATE DEGREE
AND DIPLOMA COURSES) RULES
2021)
Page No.# 2/22
ASSAM
SIXMILE
GUWAHATI-22
4:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIXMILE
GUWAHATI-22
5:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI-36
6:THE PRINCIPAL
ASSAM MEDICAL COLLEGE
DIBRUGARH
P.O.
P.S. AND DISTRICT- DIBRUGARH
ASSAM
PIN- 786001
7:THE PRINCIPAL
SILCHAR MEDICAL COLLEGE
SILCHAR
PIN- 788001
DISTRICT- CACHAR
ASSAM
8:DR. SHAHBAZ HUSSAIN
C/O- ANWAR HUSSAIN
RESIDENT OF NAYA PARA
P.O. AND P.S. ABHAYAPURI
PIN- 783384
DISTRICT- BONGAIGAON
ASSAM
9:DR. DILARA HASIN MAZUMDER
C/O- HASIB UDDIN MAZUMDER
RESIDENT OF HAILAKANDI TOWN
P.O.- RATANPUR ROAD
P.S. HAILAKANDI
PIN- 788155
DISTRICT- HAILAKANDI
ASSA
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Advocate for the petitioners : Mr. P. Bordoloi.
Advocates for the respondents : Mr. D.P. Borah,
Mr. M.P. Sarma.
Date of hearing : 25.02.2025
Date of judgment : 11.03.2025
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT & ORDER (CAV)
Heard Mr. P. Bordoloi, learned counsel for the petitioners. Also heard Mr.
D.P. Borah, learned standing counsel for the respondent Nos. 1 to 7 and Mr. M.P.
Sarma, learned counsel for the respondent Nos. 8 and 9.
2. In this petition, under Article 226 of the Constitution of India, the
petitioners, namely, Dr. Samarjit Chakraborty and Dr. Hrishikesh Baruah have
prayed for setting aside and quashing the selection and admission of the
respondent Nos. 8 and 9, namely, Dr. Shahbaz Hussain and Dr. Dilara Hasin
Mazumder, respectively, into Post Graduate Courses, under the State Health
Quota, for the Session-2024 in MD General Medicine and MS Obstetrics and
Gynaecology in Assam Medical College, Dibrugarh and Silchar Medical College,
Silchar, respectively, and also to direct the respondent authorities to allot the
seats allotted to the aforesaid respondent Nos. 8 and 9, to the petitioners in the
Department of MD in General Medicine and MS in Obstetrics and Gynaecology,
under the State Health Quota for the Session-2024.
3. The background facts, leading to filing of the present petition, are briefly
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stated as under:
"The petitioners are serving as Doctors in the State Health Services on
regular basis and have completed more than five years and become
eligible for admission under the State Health Quota in Post Graduate
Courses in different medical colleges of Assam under the Rules. Pursuant
to a notice, dated 09.11.2023, issued by the National Board of
Examination in Medical Sciences, New Delhi and the notification dated
09.01.2024, the petitioners have applied for NEET-PG, 2024, for pursuing
Post Graduate Courses under different Medical Colleges of Assam, availing
State Health Quota seats and qualified for the same with their Roll Nos.
2466114209 and 2466122006, securing 57.69 and 54.67 percentile,
respectively. Thereafter, the counselling process for admission was
conducted and the first round of online counselling was conducted from
18.11.2024 to 27.11.2024 and the petitioners have registered their names
and participated in the said counselling process, giving their first choice as
MD in General Medicine and MS in Obstetrics and Gynaecology,
respectively. After completion of the first round of counselling process, a
provisional select list of candidates as well as admission notice was
published on 26.11.2024 and in the said provisional select list, after first
round counselling process, the names of respondent Nos. 8 and 9 figured
under State Health Quota and they were given the choice of MD in
General Medicine and MS in Obstetrics and Gynaecology, respectively. As a
result, the petitioners, though admitted in the PG Courses, they are
deprived of being admitted in the department of their choice. Thereafter,
on 28.11.2024, the petitioners, along with some others submitted a
representation before the respondent No. 2/the Commissioner and
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Secretary to the Government of Assam, Health and Family Welfare
Department, Dispur, with a prayer not to admit the ineligible candidates
under the State Health Quota seat so that the petitioners are not deprived
of getting their opportunity. Thereafter, second round of counselling
process held from 12.12.2024 to 23.12.2024 and thereafter, admission
notice dated 24.12.2024, along with provisional select list for second
round of counselling was published and there also, the names of
respondent Nos. 8 and 9 figured under State Health Quota seat. Being
deprived of their rightful choice of department, the petitioners have
approached this Court by filing the present petition with the
aforementioned prayers."
4. It is the contention of the petitioners that the Medical Colleges of Assam
(Regulation of Admission into Post Graduate Degree and Diploma Courses)
Rules, 2021 ('Rules of 2021', for short) was amended and to that effect
Notification No. MER.209805/90, dated 13.03.2024, was published by inserting
new Rules as Medical Colleges of Assam (Regulation of Admission into Post
Graduate Degree and Diploma Courses) (Amendment) Rules, 2024, ('Rules of
2024', for short). Rule 7(2)(i) of the said Rules provides that State Health Quota
shall be reserved in each session for the Doctors appointed in the State Health
Quota on regular basis on the recommendation of the Assam Public Service
Commission or Medical and Health Recruitment Board and who have complete
five years or more than five years of continuous service, and that for counting
the experience of five years of service, service under Regulation 3(f) of Assam
Public Service Commission (Limitation and Function) Regulation, 1951, Service
under Rule 17B of Medical Health Recruitment Board Rules, 2017, service under
any Society or Agency created by the State Government or National Health
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Mission shall also be considered. It is also the contention of the petitioners that
the respondent Nos. 8 and 9 did not have the required five years or more than
five years continuous service in terms of the Rules of 2024 for getting a seat
under State Health Quota and if they are admitted in the State Health Quota,
the right of the petitioners would be adversely affected, and that the respondent
Nos. 8 and 9 have got the opportunity of being admitted in the choice of their
department that the petitioners are entitled to, and therefore, it is contended to
set aside their selection and admission.
5. The respondent No. 3 had filed affidavit-in-opposition, wherein a stand has
been taken that the respondent No. 8, namely, Dr. Shahbaz Hussain submitted a
certificate issued by the Joint Director of Health Services, Golaghat,
countersigned by the Director of Health Services, Assam, wherein it has been
stated that he has completed for more than five years of rural service
continuously from 11.03.2019 to specified 31.05.2024, being 5 years 2 months
20 days as per the provision of Rule 7(i)(c) of the Rules of 2024 for State Health
Service Quota candidate, and the respondent No. 9, namely, Dr. Dilara Hasin
Mazumder, had submitted a certificate wherein it has been certified that she has
also completed five years of rural service continuously from 15.03.2019 to
specified date i.e. 31.05.2024, being 5 years 2 months 16 days as per provision
of Rule 7 (i)(c) of the Rules of 2024 for the State Health Service Quota
candidate. Accordingly, they were selected and admitted according to their merit
position and choice of subject as per the provision of the Rules of 2024 and
having been found eligible, the respondent Nos. 8 and 9 were selected for
admission into PG Courses as per the provision of the relevant PG Admission
Rules.
6. The respondent No. 5 had also filed affidavit-in-opposition giving
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detailed service particulars of the respondent Nos. 8 and 9 in paragraph 5,
which is reproduced as under:
Number of Place of posting Duration Total
Doctor Period
Respondent
Respondent Bhandara Char PHC under 11.03.2019 1 year
No. 8 Manikpur BPHC (NHM) to
(Dr. Shahbaz (One Year Compulsory Rural 10.03.2020
Hussain) Posting)
Bhandara Char PHC under 11.03.2019 1 year
Manikpur BPHC (NHM) to 10 months
10.01.2022
Abhayapuri State 11.01.2022 1 year
Dispensary, Bongaigaon to 7 months
under Jt. DHS, Bongaigaon 13.08.2023 3 days
(including E/L from
22.06.2023 to 13.08.2023
Bhagyapur MPHC, Golaghat 14.08.2023 9 months
under Jt. DHS, Golaghat to 17 days
31.05.2024
Total 5 years
2 months
20 days
Respondent M.G. Model Hospital, 15.03.2019 1 year
No. 9 Katlichera (NHM) (One Year to
(Dr. Dilara Compulsory Rural Posting) 14.03.2020
Hasin
Urban Health Centre, 24.03.2020 1 year
Mazumdar)
Hailakandi (NHM) to 8 months
30.11.2021 7 days
Salchapara MPHC, under 01.12.2021 2 years
Borkhola BPHC, to 11 months
under Jt. DHS, Cachar 20.11.2024 20 days
Total 5 years
7 months
27 days
6.1 The respondent No. 5 has also enclosed the appointment order, release
order, transfer order, leave sanction letter and joining report etc. of respondent
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No.8 as Annexure 1, 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H & 1I, respectively and of
respondent No.9 as Annexure 2, 2A, 2B, 2C, 2D, 2E and 2F, respectively.
7. The respondent No. 8 has filed affidavit-in-opposition wherein he stated
that he had completed more than five years of continuous service w.e.f.
11.03.2019 to 31.05.2024 and as such, he is qualified for availing the State
Health Quota for pursuing Post Graduate Courses and he has enclosed all his
service particulars as Annexure-1 to 9. It is also stated that he appeared in the
NEET-PG Examination, 2024 and he had secured 77.5877880%, whereas, the
petitioner No.1 secured 57.6876838% and he was placed much above the
petitioners in terms of merit and there are as many as 15 incumbents between
the respondent No. 8 and the petitioner No.1, in the revised provisional merit
list of NEET-PG, 2024, and the petitioner No. 1 has to compete with them. But,
those incumbents have not been made parties in the present proceeding, and as
such, the present proceeding suffers from non-joinder of necessary party. It is
also stated that the present petition is filed by the petitioner No. 2 seeking his
subject of his choice as MS in Obstetrics and Gynaecology and the moment the
petitioner No. 1 opted for MS Obstetrics and Gynaecology at Assam Medical
College, Dibrugarh, there arose a conflict of interest among the petitioners,
inasmuch as, the petitioner No. 1 was above the petitioner No. 2 in terms of
merit and if the petitioner No. 1 had opted for the said subject, the petitioner
No. 2 would not have to get opportunity to opt for the said subject and as such,
the present petition is not maintainable. Besides, the petitioners having taken
part in the selection process and become unsuccessful in getting admitted in the
courses of their choice, now they cannot turn around and the same is also
impermissible in law.
8. The respondent No. 9 has also filed affidavit-in-opposition, wherein it is
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stated that she has completed more than five years of continuous service w.e.f.
15.03.2019 to 31.05.2024 and after completion of MBBS Course, she had
undergone one year compulsory rural posting at M.G. Model Hospital, Dholai,
under Katlicherra BPHC, Hailakandi, under NHM w.e.f. 15.03.2019 to 14.03.2020
and when she was posted as such, prior to completion of one year compulsory
rural posting, NHM issued a notice, bearing No. NHM-31013/1/2018-HRD-
NHM/30273, dated 11.02.2020, seeking application from all MO (MBBS) willing
to continue their services and as she was willing to continue her service under
NHM, she had submitted her application in terms of the said notice, on
21.02.2020 and the same was forwarded by the SDM&HO, Katlicherra BPHC,
vide no. KTC/BPHC/19-20/1503, dated 21.02.2020. Thereafter, the Controlling
Officer (Joint Director of Health Services, Hailakandi) having been satisfied with
the services rendered by her, recommended continuation of her service to the
Managing Director, NHM, Guwahati, vide letter No. NHM/DHS/HKD/HR-
corr/59/2019-2020/19698, dated 24.02.2020. Thereafter, NHM, Assam, vide
order No. NHM-31013(11)/9/2018-HRD-NHM-Part(3)/5725, dated 06.03.2020,
had published an order whereby posting of Doctors of other districts upon
continuation of their services came to be published in their website, but, the
posting for Hailakandi district was not published for reasons best known to the
authorities. When the said fact came to her knowledge, she approached the
authorities verbally for continuation of her posting at Hailakandi district and it
was made known to her that they communicated to NHM, Guwahati and they
assured that formal extension order will be received within a short period. She
further stated that though she had completed one year compulsory rural posting
on 14.03.2020, she continued to perform her duty as per verbal assurance of
the authorities. Thereafter, on 21.03.2020, an order bearing No. NHM-
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31013(11)/9/2018-HRD-NHM-Part(3)/5806 was published for continuation of
service in respect of Hailakandi district and in the said list, her name figured at
Sl. No. 2 and accordingly, she had joined within fifteen days of completion of
one year compulsory rural posting on 24.03.2020, as specified in the
aforementioned order. It is also stated that she secured 69.8947602 % and the
petitioner No. 2 secured 54.67 % in NEET-PG, 2024 and there are as many as
12 incumbents in between her and the petitioner No. 2 and the said incumbents
were not arrayed as parties in the present proceeding and the petitioner No.2
has to compete with them and as the said 12 incumbents have not been
arraigned as party in this proceeding the same suffers from non-joinder of
necessary party. It is also stated that she took admission at Silchar Medical
College on 04.12.2024 and classes commenced from 20.12.2024, and therefore,
it is contended to dismiss this petition.
9. Mr. Bordoloi, learned counsel for the petitioners submits that in view of
the affidavit filed by the respondent No. 5, the respondent No. 8 appears to
have completed five year continuous service for being qualified to avail State
Health Quota in terms of Rule 7(i)(c) of the Rules of 2024, and though, the
respondent No. 9 has completed five years of service, yet her service is not
continuous as it appears from the affidavit of the respondent No. 5 and there is
a gap period from 14.03.2020 to 24.03.2020 and as such, the selection and
admission of the respondent No. 9 for availing State Health Quota may be set
aside and quashed and in her place, the petitioner No. 2 may be admitted, and
therefore, Mr. Bordoloi has contended to allow this petition.
10. Per contra, Mr. Borah, learned Standing Counsel for the respondent Nos.
1 to 7 submits that as per record the respondent No.8 had completed five years
continuous service and thereby fulfilled the requirement of Rule 7(2) (i) of the
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Rule 2024 as on 31.05.2024.
10.1. Further, Mr. Borah submits that though the respondent No. 9 has
completed 5 years 7 months 27 days in service, yet there is a gap between
14.03.2020 till 24.03.2020. Mr. Borah also submits that though notice for NEET-
PG-2004 was first published on 09.11.2023, yet the actual notice inviting
application was issued on 16.04.2024 and before that day i.e. on 13.03.2024,
the new Rule came into force, which requires five years continuous service and
the said requirement i.e. five years continuous. Mr. Borah further submits that a
co-ordinate bench of this Court in WP(C) No. 6434/2024 (Dr. Janifa Kaifee
Ahmed vs. the State of Assam and 3 Ors.), held that the selection
process for the NEET-PG, 2024 will be governed by the amended Rules of 2024,
not by the Rules of 2021, and the said legal proposition is affirmed by a Division
Bench of this Court in WA No. 435/2024 (Dr. Janifa Kaifee Ahmed vs.
the State of Assam and 3 Ors.).
11. Per contra, Mr. Sarma, learned counsel for the respondent Nos. 8 and 9
submits that since the respondent No. 8 has continuous five years of service as
per affidavit of the respondent No. 5, there is no question of setting aside his
admission into PG Courses availing State Health Quota.
11.1. Mr. Sharma further submits that though there is a gap period in respect
of the respondent No. 9, w.e.f. 14.03.2020 till 24.03.2020, yet, after completion
of one year of compulsory rural posting on 14.03.2020, she continued to render
her service as per direction of the authorities. Mr. Sarma also submits that prior
to completion of her one year compulsory rural posting, she had applied for
continuation of her service and that though the list of candidates for other
districts were published, the list of Hailakandi district was withheld and
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thereafter, she continued to perform her duty as per verbal assurance of the
authorities, and thereafter, on 21.03.2020, an order was passed for continuation
of service in respect of Hailakandi district and her name was in Sl.No.2 in the
said order and fifteen days time was granted in the said order and accordingly,
the respondent No. 9 had joined on 24.03.2020 and as such, there is no gap in
her service.
11.2. However, to a pointed query of this Court as to whether the respondent
No. 9 has any documentary proof to show that she had continued her service
after completion of one year compulsory rural posting from 14.03.2020 till
24.03.2020, on which date she joined after extension of her service, Mr. Sarma,
learned counsel for the respondent Nos. 8 and 9 submits that he has no such
documentary proof since as per verbal instruction and assurance of the higher
authorities, she continued to work as Medical Officer in Katlicherra BPHC,
Hailakandi. But, Mr. Sharma submits, before expiry of one year of continuous
rural service she had applied for continuation of her service and the same was
forwarded by the SDM & HO, Katlicherra BPHC and also recommended by the
Joint Director of Health Services, Hailakandi to the MD of NHM, Guwahati.
11.3. Mr. Sharma also submits that the respondent Nos. 8 and 9 are in higher
position in the merit list than that of the petitioners and they were selected on
merit, and in between the respondent No. 8 and the petitioner No. 1 and in
between the respondent No. 9 and the petitioner No. 2, there are many
incumbents and those incumbents have not been arraigned as parties in this
writ proceeding, and as such, for non-joinder of necessary party, this proceeding
must fail.
11.4. Further contention of Mr. Sarma is that the petitioners have taken part in
the selection process, along with the respondent Nos. 8 and 9 and having failed
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to get the department of their own choice on account of their inferior position in
the select list, now they cannot turn around and challenge the selection of the
respondent Nos. 8 and 9. And therefore, Mr. Sharma has contended to dismiss
this petition.
12. Having heard the submissions of learned Advocates of both sides, I have
carefully gone through the petition and the documents placed on record, and
also perused the Rules of 2024 and the earlier Rules of 2021.
13. Rule 7(2)(i) of the Rules of 2024 provides as under:
"Amendment of Rule 7 (2)(i)
In the principal Rules, in Rule 7, in sub-rule (1), after
clause (c), in last line, after the word and brackets (SHS
Seats), the punctuation mark ":" shall be inserted and
thereafter the following proviso shall be inserted, namely:-
Provided that-
(i) State Quota seats shall be reserved in each session
for the Doctors appointed in the State Health
Services on regular basis on the recommendation of
the Assam Public Service Commission or Medical and
Health Recruitment Board and who have completed five
years or more than five years of continuous service.
For counting the experience of five years of service,
service under Regulation 3(f) of Assam Public Service
Commission (Limitation and Function) Regulation,
1951, Service under rule 17B of Medical Health
Recruitment Board Rules, 2017, service under any
Society or Agency created by the State Government or
National Health Mission shall also be considered."
14. It is worth mentioning in this context that the word 'continuous
service' was not there in the earlier set of Rules of 2021 and the same was
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incorporated by the amended Rules of 2024. Now, in view of the amended
Rules, the candidate must complete five years of continuous service without any
break.
15. Now, adverting to the facts here in this case, I find that the respondent
No. 8, having been appointed on 11.03.2019, continued to render his service
until 31.05.2024, for a period of 5 years 2 months 20 days, without any break.
And as such he has fulfilled the requirement of the relevant Rule. That being so,
the question of setting aside his selection and admission to pursue the NEET-PG
Course availing State Health Quota does not arise.
16. Now, what remains to be seen is the case of the respondent No.8. And it
appears that there is a gap in respect of service of respondent No. 9. She
worked as Medical Officer in M.G. Model Hospital, Katlicherra BPHC, Hailakandi
(NHM) from 15.03.2019 to 14.03.2020. However, it appears that her service was
extended after completion of one year only vide Order dated 21.03.2020 and
she jointed on 24.03.2020 at Urban Health Centre, Hailakandi (NHM) and
thereafter, continued her service and completed a period of 5 years 7 months 27
days. There is a gap period of 10 days from 14.03.2020 till 24.03.2020.
17. It appears that she has taken a stand that though she had completed one
year of her compulsory rural posting on 14.03.2020, yet, before completion of
one year, pursuant to notice dated 11.02.2020, issued by the NHM, she had filed
an application for continuation of her service under NHM and her application
was forwarded by the SDM&HO, Katlicherra BPHC on 21.02.2020, and
thereafter, the Controlling Officer (Joint Director of Health Services, Hailakandi)
having been satisfied with the service rendered by her, had recommended for
continuation of her service, to the Managing Director, NHM, Guwahati, vide
letter dated 24.02.2020.
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18. It is not in dispute that though the order of continuation of the services of
her counterpart in other districts were published on 06.03.2020, the list of
Hailakandi district was published only on 21.03.2020. But, for this lapse on the
part of the respondents authorities no fault can be attributed to the respondent
No.9. Her contention is that immediately knowing about non-publishing of the
list for the Hailakandi district, she had approached the respondent authorities
and she was verbally allowed to continue her posting at Hailakandi district
informing her that they communicated with the NHM, Guwahati and assured her
formal extension within a short period. She had made a categorical statement to
this effect in paragraph No. 4 of her affidavit-in-opposition. And the same
remains uncontroverted during the entire proceeding. Neither the authorities
nor the petitioners had controverted the same.
19. Moreover, the stand so taken by the respondent No.9, stands fortified from
the statement and averment made by the respondent No.3, i.e. Controller of
Examination, Directorate of Medical Education Assam, in para No. 6 of the
affidavit-in-opposition filed by him and also from the Annexure 4 of the said
affidavit. It is also to be noted here that Annexure- 4 was issued by Joint
Director cum- Member Secretary, District Health Society, Hailakandi where in it
is clearly stated that with extension of services under National Health Mission,
under the control of District Health Society, Hailakandi, Dr. Dilara Hasin
Mazumdar continued her services as Medical Officer (MO-MBBS, NHM) at Urban
Health Centre, Hailakandi till 30.11.2021.
20. Thus, there appears to be inter-se inconsistencies in the stand taken by the
respondent No.3 and respondent No.5 and the same is very unfortunate. Since
Annexure -4 was issued by Joint Director cum- Member Secretary, District
Health Society, Hailakandi a presumption about genuineness of the same is
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always available.
21. Though Mr. Borah, the learned standing counsel for the respondent
authorities, submits that in absence of written order, rendering service by a
Doctor in a Government Hospital is unthinkable. But, what remained
uncontroverted is that - pursuant to notice, dated 11.02.2020, issued by the
NHM, respondent No.9 had filed an application for continuation of her service
under NHM and her application was forwarded by the SDM&HO, Katlicherra
BPHC on 21.02.2020, and thereafter, the Controlling Officer (Joint Director of
Health Services, Hailakandi) having been satisfied with the service rendered by
her, had recommended for continuation of her service, to the Managing Director,
NHM, Guwahati, vide letter dated 24.02.2020. It is also not controverted that
though the order of continuation of the services of her counterpart in other
districts were published on 06.03.2020, the list of Hailakandi district was
published only on 21.03.2020. Further, it is not in dispute immediately knowing
about non-publishing of the list for the Hailakandi district, she had approached
the respondent authorities and she was verbally allowed to continue her posting
at Hailakandi district informing her that they communicated with the NHM,
Guwahati and assured her formal extension within a short period. Therefore, the
submission of Mr. Borah left this court unimpressed.
22. Another aspect of the matter, that should not be lost sight of, is that in
between respondent No.8 and the petitioner No.1, there are as many as 15
incumbents and in between respondent No.9 and petitioner No.2 there are as
many as 12 incumbents. And indisputably, none of them have been arrayed as a
party in this proceeding. While the petitioner No.1 had opted for MD in
Medicine, some of the incumbents in between him and the respondent No.8 also
may have opted for MD in General Medicine. But, the said incumbents were not
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arraigned as party in this proceeding. Similarly, petitioner No.2 had opted for MS
in Obstetrics and Gynaecology, some of the incumbents in between her and the
respondent No.9 also may have opted for MS in Obstetrics and Gynaecology.
But, the said incumbents were not arraigned as party in this proceeding. That
being so, in the event of cancellation of selection of respondent No.8 and 9, the
petitioners No.1 and 2 cannot be allotted the seats as the other meritorious
candidates, whose names figured above their position in the select list, may also
claim the seat. Mr. Sharma, the learned counsel for the respondent No.8 and 9
had rightly pointed this out during argument and I find substance in the same.
23. Thus, because of non-joinder of necessary parties also this petition is
bound to fail. In arriving at such a finding, this Court gain sustenance from the
following decision of Hon'ble Supreme Court.-
(i) In the case of Prabodh Verma v State of U.P., reported in
(1984) 4 SCC 251, Hon'ble Supreme Court has discussed the
consequences of non-joinder of necessary parties to a writ petition and
held that the result would vitally affect them. Para 28 of the said
judgment is extracted herein under:
"28. ....A High Court ought not to decide a writ petition
under Article 226 of the Constitution without the persons
who would be vitally affected by its judgment being before
it as respondents or at least by some of them being before
it as respondents in a representative capacity if their
number is too large, and, therefore, the Allahabad High
Court ought not to have proceeded to hear and dispose of
the Sangh's writ petition without insisting upon the
reserve pool teachers being made respondents to that writ
petition, or at least some of them being made respondents
in a representative capacity, and had the petitioners
Page No.# 18/22
refused to do so, ought to have dismissed that petition
for non-joinder of necessary parties."
(ii) In the case of Vijay Kumar Kaul and others v. Union of India
and others, reported in (2012) 7 SCC 610, also Hon'ble Supreme
Court had considered the effect of non-impleadment of necessary parties,
wherein the well-settled position of declining relief to the petitioners, when
the affected parties were not impleaded was reiterated as under :-
"36.Another aspect needs to be highlighted. Neither before
the Tribunal nor before the High Court, Parveen Kumar and
others were arrayed as parties. There is no dispute over
the factum that they are senior to the appellants and have
been conferred the benefit of promotion to the higher
posts. In their absence, if any direction is issued for
fixation of seniority, that is likely to jeopardise their
interest. When they have not been impleaded as parties
such a relief is difficult to grant."
24. It also appears that NEET-PG admission notice for the year 2024, was first
published on 09.11.2023. And subsequent Notice was published on 09.01.2024.
Thereafter, another notice inviting application was published on 16.04.2024, as
it appears from the decisions referred by Mr. D.P. Borah, the learned standing
counsel for the respondent authorities. But, said notice was not placed on
record by any of the parties. It also appears that before issuance of Notice
dated 16.04.2024, the new sets of Rules, requiring five years of continuous
service came into force on 13.03.2024. If beginning of the process is counted
from 09.11.2023, on which the first Notice was published, the new Rules i.e.
Rules 2024, cannot be made applicable retrospectively. The Rules came into
force from the date of publication in the Gazette on 13.03.2024. Though Mr.
Borah, the learned standing counsel for the respondent authorities, submits that
Page No.# 19/22
this issue has been settled by a co-ordinate bench of this Court in WP(C) No.
6434/2024 (Dr. Janifa Kaifee Ahmed vs. the State of Assam and 3
Ors.), and affirmed by a Division Bench of this Court in WA No. 435/2024 (Dr.
Janifa Kaifee Ahmed vs. the State of Assam and 3 Ors.), where in it
has been held that the selection process for the NEET-PG, 2024 will be governed
by the amended Rules of 2024, not by the Rules of 2021, yet, the factual matrix
of said case is different from the case in hand. In the said case, there was
shortfall of five months of service of the petitioner to complete the requirement
of five years service. And further, when the process of NEET-PG 2024 was
started, was not the issue before the courts. That being so, this court afraid that
the decisions referred by Mr. Borah may not advance his argument.
25. In the case in hand, the respondent No.9 had completed 5 years 7 months
27 days in service. She has also secured 69.8947602 %, of marks in NEET-PG
2024, which is much higher than the percentage of the petitioner No. 2, who
secured 54.67 % in NEET-PG Examination, 2024. It also appears from the
Annexure-9 of the affidavit of respondent No.9, that she has already been
admitted in Silchar Medical College & Hospital and her classes started from
20.12.2024, and she was released by the Government of Assam, vide
Notification dated 06.02.2025, (Annexure-11) pursuant to the letter dated
23.12.2024 (Annexure-10), of the Director of Health Services, Assam,
Hengrabari and accordingly, she had handed over the charge on 10.02.2025,
vide Annexure-12.
26. Further, it appears that the petitioners herein had already been selected for
pursuing the PG Courses under the State Health Quota. The petitioner No.1 got
allotment of seat at Fakaruddin Ali Ahmed Medical College, Barpeta, in MS-
General Medicine subject and the petitioner No.2 got allotment of seat in Jorhat
Page No.# 20/22
Medical College, Jorhat in MS-General Surgery subject, under the state health
quota based upon their performance in NEET-PG for 2024 examination.
27. Under the given facts and circumstances, this Court is of the considered
opinion that it would be unjust to set aside the selection of respondent No.9, by
exercising the jurisdiction under Article 226 of the Constitution of India, which
is by and large an equitable and discretionary jurisdiction, in view of the
jurisprudence developed by the Courts over the years, that accords significance
to the role of justice and equity in the exercise of writ jurisdiction.
28. It is well settle that the jurisdiction of the High Court, under Article 226 of
the Constitution is extraordinary, equitable and discretionary. Prerogative writs,
mentioned therein, are issued for doing substantial justice [See K.D. Sharma
v. SAIL reported in (2008) 12 SCC 481], and is to be exercised to reach
injustice wherever it is found (See- Secy., ONGC Ltd. v. V.U.
Warrier reported in 2005 (5) SCC 245). The writs referred to in Article
226 of the Constitution are intended to be issued in grave cases where such act,
omission, error, or excess has resulted in manifest injustice (See-Veerappa
Pillai v. Raman & Raman Ltd. reported in 1952 SCR 583). Though no
limits can be placed upon its discretion, yet it is well settled that the High Court
must exercise its power along recognised lines, and not arbitrarily. One of the
limitations imposed by courts on themselves is that they will not exercise
jurisdiction unless substantial injustice has ensued, or is likely to ensue. They
will not exercise jurisdiction to set right mere errors of law, which do not
occasion injustice in a broad and general sense [See- Sangram Singh v.
Election Commissioner, Kotah & Anr., reported in [1955] 2 SCR
1)].
Page No.# 21/22
29. To recapitulate, on the following grounds, this court is not inclined to
interfere with the selection of the respondent No.8 and 9:-
(i) The respondent No. 8, having been appointed on 11.03.2019,
continued to render his service until 31.05.2024, for a period of 5
years 2 months 20 days, without any break and thereby satisfied
the requirement of the Rules.
(ii) Though, there appears to be a gap of 10 days in the service of the
respondent No.9, with effect from 14.03.2020 till 24.03.2020, yet,
her contention that though she had completed her compulsory
rural posting on 14.03.2020, yet, as per verbal instruction and
assurance of the higher authorities, she continued to work as
Medical Officer in Katlicherra BPHC, Hailakandi and her contention
stands fortified from the statement and averment made in the
para No. 6 of the affidavit-in-opposition filed by the respondent
No. 3 and also from the Annexure-4 of the affidavit-in-opposition
of respondent No.3 i.e. Controller of Examination, Directorate of
Medical Education Assam.
(iii) There is non-joinder of necessary parties in this writ proceeding;
(iv) No retrospective effect of Rules 2024 was given;
(iv) The jurisdiction, under Article 226 of the Constitution of India, is
by and large, an equitable jurisdiction which cannot be exercised
to set right mere errors of law, which do not occasioned failure of
justice injustice in a broad and general sense, since both the
petitioners got selection in some other department as per their
relative merit.
Page No.# 22/22
30. In the result, I find no merit in this petition and accordingly, the same
stands dismissed. The parties have to bear their own costs.
JUDGE
Comparing Assistant
