Madhya Pradesh High Court
Dr. Vijendra Dhanware vs The State Of Madhya Pradesh on 14 January, 2022
Author: Sujoy Paul
1
W.P. No.25819 of 2021
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. W.P. No.25819 of 2021
Parties Name Dr. Vijendra Dhanware & Another
Vs.
The State of Madhya Pradesh and others
Bench Constituted Division Bench comprising of :-
Justice Sujoy Paul,
Justice Arun Kumar Sharma
Judgment delivered by Justice Sujoy Paul, J.
Whether approved for reporting YES
Name of counsels for parties For petitioners: Shri Siddharth Gupta,
Advocate.
For respondent/State: Shri Piyush
Dharmadhikari, Govt. Adv. for respondent
Nos. 1, 2 and 4.
Shri Anoop Nair, Advocate for respondent
No. 3.
Law laid down Admission Rules - Definition of 'in-
service candidates' also includes the
Medical Officers working in District
Hospital whether or not such Hospital is
situated in difficult, remote or rural area.
Thus, they are entitled to be considered as
special entry under 30%.
MCI Regulations - Regulation 9(8). This
regulation is applicable to Diploma Course
and not to Degree or Post Graduate Degree
Course. No provision was brought to the
notice of the Court to show that posting at
remote, difficult or rural area is essential to
become in-service candidate for Post
Graduate Degree Course.
Interpretation of Statutes - If language of
statute is plain and unambiguous, it has to
be given effect to irrespective of its
consequences.
Constitution of India - List and Entries
related to power of Central
Government/MCI and State Government
- The argument of State that MCI
Regulation 9(8) holds the field and
therefore the Admission Rules and Orders
2
W.P. No.25819 of 2021
must be in line of Regulations and anything
repugnant to Regulations must be eschewed
is found to be devoid of substance because
the said regulation does not deal with
Degree Course at all.
Policy decision of Government - The
scope of judicial review is very limited. The
Government is best suited to take a policy
decision which can be interfered with if
shown to be palpably arbitrary,
discriminatory or unconstitutional. The
order / policy dated 28/3/2019 is not
arbitrary, discriminatory or
unconstitutional.
Practice and Procedure - The
constitutionality / validity of policy
decision is not called in question. In
absence thereto, Court cannot re-write the
policy or insert something in the said
policy. The policy is to be read as such.
Significant paragraph numbers
ORDER
(14.01.2022)
Sujoy Paul, J. :-
In this petition filed under Article 226 of the Constitution of India,
the petitioners have prayed for the following reliefs :-
(i) That this Hon'ble Court be pleased to issue any
appropriate writ/order/direction declaring the
Chart/List/Table uploaded on the official website of
Respondent authorities on 12/13.11.2021 as contrary to
its Department Order/ Circular dated 19.08.2021 and thus
quash the same insofar is related to Medical Officers like
the petitioners who are rendering services in the District
Civil Hospitals of the State.
(ii) That this Hon'ble Court may be pleased to issue
any appropriate writ/order/direction directing the
respondent authorities, especially the DME and DHS,
W.P. No.25819 of 2021
State of Madhya Pradesh, for suitably revising the
impugned Chart/Table/ List for including the name of
petitioners and Medical Officers serving in the District
Government Hospitals of the State amongst those entitled
for benefit of 30% reservation meant for in-service
candidates as per the Government Circular dated
19.8.2021 issued by the State of Madhya Pradesh.
(iii) That this Hon'ble Court may be pleased to issue
any appropriate writ/order/direction declaring and
holding that the petitioners are entitled for 10%
additional marks by treating their place of posting in the
last one and a half year (Harda Civil Hospital in the case
of petitioner No. 1 and CHC, Mangilal Churiya, District
Indore in case of petitioner No. 2) as a 'difficult area' in
terms of Regulation 9, (IV, VII) of the MCI PG
Regulations 2000 and accordingly the petitioners be held
entitled for 10% additional marks for the same.
(iv) That this Hon'ble Court may be pleased to issue any
appropriate Writ/Order/ Direction directing the
respondent State of Madhya Pradesh for suitably
modifying the Public Notice dated 28.03.2019 governing
the grant of additional 10% marks to in -service doctors,
who have served in Covid -19 affected districts,
especially districts like Harda and Indore, during the
covid-19 pandemic, by incorporating a provision for
grant of 10% additional marks for all those Medical
Officers (MO) who have served in the COVID -19
affected hospitals or Health Care Centres and accordingly
by pleased to direct for revision of the impugned
List/Table/Chart, dated 12/13.11.2021.
(v) Any other relief which this Hon'ble Court deems
just and proper in the facts and circumstances of the case
may also kindly be granted to the petitioners.
W.P. No.25819 of 2021
2. The interesting conundrum in this case is whether the petitioners
MBBS qualified Doctors rendering their services as regular employees
in the Department of Health Services, State of M.P. fall in the category
of 'in service candidates' and whether they have separate channel of
entry in P.G. Course as per order dated 19.8.2021 issued by the State
Government.
3. The admitted facts between the parties are that the petitioners are
working as regular employees and are qualified MBBS Doctors. The
points on which the parties are at loggerheads are :-
(a) Whether 'in-service candidates' includes present
petitioners, who are presently posted in District Hospital,
Harda and Indore respectively ?
(b) Whether the petitioners are entitled to get incentive of
marks as per circular/order dated 28.3.2019 ?
4. Shri Siddharth Gupta, learned counsel for the petitioners by taking
this Court to the Government order dated 19.8.2021 submits that the
reservation/separate channel of entry to the extent of 30% in P.G.
Degree Course is made by this order. The order covers Demonstrator,
Tutors and the Medical Officers, the category to which present
petitioners belong. The Government has framed rules namely M.P.
Chikitsa Shikisha Pravesh Niyam 2018, (in short, 'Admission Rules').
As per these statutory rules, published in the official gazette dated 9 th
March 2018, the petitioners are covered in the definition of "serving
employees", as per Rule 2(k).
W.P. No.25819 of 2021
5. The said admission rules were further amended by notification
dated 5th October 2021. By placing reliance on Rule 14 of these rules ,
Shri Siddharth Gupta, learned counsel for the petitioners further urged
that 30% reservation/separate channel of entry is earmarked for Degree
Seats for Demonstrator/Tutors/Medicals Officer. The petitioners being
Medical Officers are entitled to be considered against reserved seat
of 30%, whereas they were treated to be eligible only for open seats.
This action of respondents is bad in law and runs contrary to the
admission rules.
6. The next argument of learned counsel for the petitioners is based
on the policy dated 28.2.2019. It is argued that this policy was issued
in Pre-Covid era. In this policy, it was decided to provide additional
marks/incentive to the serving candidates. However, the benefit of
incentive was confined to the candidates working in rural, remote and
difficult areas. The said areas were defined in the order dated
28.2.2019 (Annexure P/9) and in the Schedule-1 appended to the said
order, the areas/places were defined. Although, Harda and Indore,
where petitioners were admittedly working do not find place in the
areas mentioned in the Schedule-1 of said order, Shri Gupta submits
that the word 'difficult' has been considered by this Court in W.P. Nos.
4316, 4512 and 4526 of 2017, (Brijesh Yadav and others Vs. State of
M.P. and others). Considering the fact that Indore and Harda District
Hospitals were also difficult areas where the petitioners were rendering
their service 24x7 during Pandemic era, they must be treated to be
W.P. No.25819 of 2021
performing difficult service, and therefore, the benefit of this order
dated 28.2.2019 must be extended in favour of petitioners as well.
7. By placing reliance on 1984 (1) SCC 222 (Motor General
Traders Vs. State of Andhra Pradesh & Ors.) and AIR 1998 SC 602
(Malpe Vishwanath Acharya and others Vs. State of Maharashtra and
another), it is further urged that a provision of law may be valid at the
time of its issuance but may lose its relevance by efflux of time. Thus,
change in circumstances and passage of time is a relevant factor to
examine the correctness and applicability of a circular. To elaborate, it
is submitted that the order dated 28.2.2019 was passed when Pandemic
was not there. During Pandemic, since all the Doctors working in
District Hospitals became vulnerable and worked at the cost of their
and families' lives, they should be included in the category of difficult
posting/area.
8. On the strength of aforesaid argument, Shri Gupta submits that
whether petitioners are treated as open category candidate or a candidate
having separate channel of entry, in both the situations, the petitioners
must get the benefit of incentive that will upgrade their merit position.
There is no justification in depriving the petitioners from the fruits of
order dated 28.02.2019.
9. Regulation 9(4) of the MCI Post Graduate Medical Education
Regulations, 2000 (in short 'Regulations') mandates that Government
shall notify about difficult areas "from time to time". Placing reliance
on this expression from time to time, learned counsel for the petitioners
submits that post Covid also the scope of difficult areas should have
W.P. No.25819 of 2021
been changed by including the District Hospitals which were badly
Covid affected. In that case, petitioners will get benefit of incentive
marks of 10% per year which will be of great benefit for them. In
support of his submissions, he placed reliance on 2021 (6) SCC 568
(Tamil Nadu Medical Officers Association & Ors. Vs. Union of India
& Ors.), a judgment of this Court in Dr. Hemendra Chouhan and
others Vs. State of M.P. and others W.P.(C) No.7414 of 2020 and
another judgment of Brijesh Yadav and others vs. State of M.P. (AIR
2017 M.P. 142).
10. Shri Anoop Nair, learned counsel for respondent No.3 submits
that he has limited role to play. The Government has issued the order
dated 28.02.2019 whereby certain incentive marks were decided to be
given. Per se Covid is not a situation because of which District
Hospitals should be treated in difficult area.
11. Shri Piyush Dharmadhikari, learned Government Advocate
submits that prescribing standard of education on Pan India basis is
within the domain of Medical Council of India (MCI). As per Entry-66,
List-1 of the Constitution of India, the MCI is best suited to prescribe
such conditions. Regulation 9(4) and 9(8) prescribes such conditions
which also governs the reservation/separate source of entry. The State
Government cannot legislate contrary to the Regulations framed by
MCI. The reliance is placed on 2016 (7) SCC 353 (Motor Dental
College & Research Centre & Ors. Vs. State of M.P.), 1999 (7) SCC
120 (Dr. Preeti Shrivastava & Anr. Vs. State of M.P. & Ors.) and 2021
(6) SCC 568 (Tamil Nadu Medical Officers Association & Ors. Vs.
W.P. No.25819 of 2021
Union of India & Ors.). It is submitted that a conjoint reading of para-
17 and 23.8 of this 2021 judgment which was passed during Pandemic
era by Supreme Court, it is clear that Supreme Court covered only
'hilly' and 'tribal' areas and it does not include Covid affected hospitals.
12. The stand of State is that Regulation 9(8) is very clear and a
conjoint reading of Regulation 9(8) and order dated 28.02.2019 makes it
clear that emphasis is on 'difficult area' and not on 'difficult services'.
The area in which petitioners were working were not difficult areas at
all. The State in its legislative power and under relevant entries of list
cannot issue any direction which is repugnant to the Regulations framed
by MCI. No doubt, the admission rules and the order dated 19.08.2021
talks about in-service candidate only, the further categorization /
reservation is to be traced from MCI Regulation. Heavy emphasis is
laid on Regulation 9(8) to contend that this Regulation makes it clear
that it is to be confined to rural, difficult and remote areas.
13. Shri Siddharth Gupta, learned counsel for the petitioners in his
rejoinder submissions urged that Regulation 9(8) is applicable to
'Diploma Course'. There is no Regulation of MCI which deprives the
present petitioners for consideration as in-service candidates. The
governing rule (Admission Rules) brings petitioners within the zone of
consideration. Thus, petitioners are entitled to get the benefit of
consideration in separate channel of entry.
14. Parties confined their arguments to the extent indicated above.
15. We have heard the parties at length and perused the record.
W.P. No.25819 of 2021
16. Before dealing with rival contentions, it is apposite to quote relevant
orders and rules/provisions. Order dated 19.8.2021 Annexure P-5 read as
under :-
"Ek/;izns'k 'kklu
fpfdRlk f'k{kk foHkkx
ea=ky;
&&&&
@@vkns'[email protected]@
Hkksiky] fnukad [email protected]@2021
Øekad ,Q&5&[email protected]@[email protected] & jkT; 'kklu ,rn~ }kjk LukrdksRrj fMxzh ikB~;Øe esa
izos'k gsrq yksd LokLF; ,oa ifjokj dY;k.k foHkkx esa dk;Zjr lsokjr~ fpfdRldksa ,oa fpfdRlk
f'k{kk foHkkx ds varxZr [email protected] fpfdRlk egkfo|ky;ksa esa dk;Zjr izn'kZd] V;wVj ,oa
esfMdy vkWfQllZ ds fy;s 'kkldh; Lo'kklh ,oa futh [email protected] fpfdRlk egkfo|ky;ksa esa
miyC/k leLr ih0th0 fMxzh lhVksa ij 30 izfr'kr vkj{k.k ykxw djrk gSA
;g vkj{k.k izos'k l= 2021&22 ls ykxw gksxkA
e/;izns'k ds jkT;iky ds uke ls
rFkk vkns'kkuqlkj
¼ds-ds- nqcs½
mi lfpo
e/;izns'k 'kklu
fpfdRlk f'k{kk foHkkx"
The definition of in-service candidate mentioned in Admission Rules
(Annexure P-7) reads as under :-
¼/k½ ^lsokjr vH;FkhZ ls vfHkizsr gS] e/;izns'k ljdkj ds v/khu
fdlh foHkkx vFkok laLFkk esa fu;fer vFkok lafonk lsok esa dk;Zjr
vH;FkhZ ftlus fu;ksDrk ls vukifRr izkIr djus ds i'pkr~ izos'k gsrq
iksVZy ij iath;u djk;k gks(
The relevant portion of amended Admission Rules reads as under :-
^^14- lsokjr vH;fFkZ;ksa ds fy;s izksRlkgu]&
lsokjr vH;[email protected] f'k{kk foHkkx ds vUrxZr 'kkldh;
[email protected] fpfdRlk egkfo|ky;ksa esa dk;Zjr
fMeksUlVª[email protected]~;[email protected] vkWfQlj vH;fFkZ;ksa ds fy;s izksRlkgu-
¼1½ 'kkldh; ,oa futh [email protected] fpfdRlk egkfo|ky;ksa
esa miyC/k leLr fo/kkvksa dh fMxzh lhVksa dh fjfDr;ksa ij vgZrk/kkjh
iathÑr lsokjr vH;[email protected] f'k{kk foHkkx ds vUrxZr dk;Zjr~
fMeksUlVª[email protected]~;[email protected] vkWfQlj gsrq 30 izfr'kr vkj{k.k
jgsxk-
(emphasis supplied)
A conjoint reading of aforesaid order and the rules leaves no room for
any doubt that definition of 'in-service candidate' is wide enough to include
W.P. No.25819 of 2021
the medical officers. Admittedly, petitioners were working as Medical
Officers in District Hospitals. A combined reading of aforesaid order and
rules further makes it clear that there is no impediment in the aforesaid
which deprives the petitioner from right of consideration in Post Graduate
Degree Course as a separate channel of entry.
17. Regulation 9(8) on which the whole argument of Shri Piyush
Dharmadhikari, Government Advocate is founded upon reads as under :-
"50% of the seats in Postgraduate Diploma Courses
shall be reserved for Medical Officer in the Government
service, who have served for at least three years in
remote and / or difficult areas and/or Rural areas.
After acquiring the Postgraduate Diploma, the Medical
Officers shall serve for two more years in remote and /or
difficult areas and / or Rural areas as defined by State
Government/ Competent authority from time to time."
(emphasis supplied)
A plain reading of this regulation shows that argument of Shri
Siddharth Gupta Advocate has substantial force. The regulation 9(8) is
applicable to Post Graduate Diploma Course and not to the course in
question i.e. Postgraduate Degree Course. This is trite that when language of
a statute is clear and unambiguous, it has to be given effect to irrespective of
its consequences (See Nelson Motis Vs. Union of India 1992 (4) SCC 711).
It will not be out of place to mention here that whole argument of Shri
Dharmadhikari, Government Advocate about repugnancy of provisions and
relevant List and Entries of the Constitution is founded on the Regulation
9(8) aforesaid. At the cost of repetition, it is noteworthy that the genesis of
argument of learned Government Advocate was that the State Government
by no stretch of imagination can legislate anything or issue executive
instructions which runs contrary to MCI Regulations. Since Regulation 9(8)
holds the field, only such in-service candidates are entitled for reservation
W.P. No.25819 of 2021
who have served for at least 3 years in remote/difficult or rural areas. This
argument pales insignificance because present matter does not relate to
Diploma Course. Thus, Regulation 9(8) has no application and no other
regulation for this purpose is brought to the notice of this Court. Thus,
judgments cited by Shri Dharmadhikari based on this proposition cannot be
pressed into service. As a consequence, we are constrained to hold that the
petitioners have a separate channel of entry being Medical Officers in
earmarked 30% total seats of Postgraduate Medical Courses. Regulation
9(8) deals with incentive marks.
18. The matter may be viewed from another angle. The Demonstrators
and Tutors working in cities/urban areas are treated as 'in-service
candidates'. Neither the relevant order nor the rule precludes the Medical
Officers working in urban areas or hospitals from benefit of being 'in-
service candidate'. If we hold that the Demonstrators and Tutors are eligible
despite being posted in towns (not covered under difficult, rural or remote
areas) as in-service candidates and petitioners are not, it will divide a
homogeneous class of 'in-service candidates' and will create a class within
the class without there being any rationale and justification for the same.
This will run contrary to the principles laid down by the Constitution Bench
of Apex Court in AIR 1955 SC 191 (Budhan Choudhary & Ors. Vs. State
of Bihar). The ratio decidendi of Budhan Choudhary has been consistently
followed by Supreme Court in Hiralal P. Harsora vs. Kusum Narottamdas
Harsora (2016) 10 SCC 165, Karnataka Live Band Restaurants Assn. vs.
State of Karnataka (2018) 4 SCC 372, Lok Prahari vs. State of U.P. (2018)
6 SCC 1, CRPF vs. Janardan Singh (2018) 7 SCC 656, Navtej Singh
W.P. No.25819 of 2021
Johar vs. Union of India (2018) 10 SCC 1 and Rana Nahid vs. Sahidul
Haq Chisti (2020) 7 SCC 657.
19. The second limb of argument of Shri Siddharth Gupta, Advocate was
for getting incentive marks. This argument is based on order dated
28.2.2019.
A careful reading of this order makes it clear that incentive marks
were decided to be given to in-service candidates who have worked in rural,
remote and difficult areas. Scheduled-1 is appended to this order dated
28.2.2019 whereby "difficult areas" are earmarked. The place of posting of
petitioners namely Harda and Indore do not find place in the Schedule.
Pertinently, order dated 28.2.2019 is not called in question. The order dated
28.2.2019 is a policy decision taken by the Government which cannot be
lightly disturbed. The policy decision can be interfered with on limited
grounds. When policy decision is not even challenged, it has to be read as
such and this Court cannot re-write and insert something which is not there
in their policy decision. The State Government is best suited to take a policy
decision and this Court has no expertise to re-write or insert something in it.
The legal journey on this aspect may be seen. Lord Mac Naughten in
Vacher & Sons Ltd. v. London Society of Compositors [Vacher & Sons Ltd.
v. London Society of Compositors, 1913 AC 107: (1911-13) All ER Rep
241 (HL)] has stated: (AC p.118) :
".... Some people may think the policy of the Act unwise
and even dangerous to the community. ... But a judicial
tribunal has nothing to do with the policy of any Act
which it may be called upon to interpret. That may be a
matter for private judgment. The duty of the court, and its
only duty, is to expound the language of the Act in
accordance with the settled rules of construction.'
(emphasis supplied)
W.P. No.25819 of 2021
The litmus test laid down by Lord Mac Naughten
was quoted with profit by Supreme Court in the matter of
Centre for Public Interest Litigation Vs. Union of
India (2016) 6 SCC 408. In the matter of State of M.P.
Vs. Nandlal Jaiswal (1986) 4 SCC 566, the Apex Court
has held as under :-
"34....... The Government, as was said in Permian
Basis Area Rate Cases [20L Ed (2d) 312] is entitled to
make pragmatic adjustments which may be called for by
particular circumstances. The Court cannot strike down a
policy decision taken by the State Government merely
because it feels that another policy decision would have
been fairer or wiser or more scientific or logical. The
Court can interfere only if the policy decision is patently
arbitrary, discriminatory or mala fide. It is against the
background of these observations and keeping them in
mind that we must now proceed to deal with the
contention of the petitioners based on Article 14 of the
Constitution."
(emphasis supplied)
20. The ratio decidendi of these judgments were consistently followed by
Supreme Court in the case of State of Punjab Vs. Ram Lubhaya Bagga,
Ugar Sugar Works Ltd. Vs. Delhi Admn; (2001) 3 SCC 635, State of
Orissa Vs. Gopinath Dash (2005) 13 SCC 495, State of U.P. Vs.
Chaudhari Ran Beer Singh (2008) 5 SCC 550, Parisons Agrotech (P)
Ltd. Vs. Union of India (2015) 9 SCC 657 and Centre for Public Interest
Litigation Vs. Union of India (2016) 6 SCC 408.
21. So far judgment of Malpe Vishwanath Acharya and others vs State
of Maharashtra and another (1998) 2 SCC 1 is concerned, suffice it to say
that in the said case, the constitutionality of impugned provision was called
in question but said provisions elapsed on 31.3.1998. In the instant case, the
relevant provision/circular is not called in question. Similarly, in the case of
Motor General Traders and another Vs. State of Andhara Pradesh and
others (1984) 1 SCC 222, the constitutional validity of Clause (b) of
Section 32 of Relevant Control Act was subject matter of challenge. In that
W.P. No.25819 of 2021
backdrop, the findings were given by Supreme Court. In absence of any
such challenge to the circular/order dated 28.2.2019, the said judgments
cannot be pressed into service.
22. In view of foregoing analysis, we are unable to hold that 'difficult
area' includes "difficult services" rendered in District Hospital Indore and
Harda. Thus, question of grant of incentive marks to the petitioners does not
arise. To this extent, the petition must fail.
23. As discussed above, petitioners fall in the category of 'in-service
candidates' for the purpose of Postgraduate Medical Courses. The
respondents have erred in not treating them in the said category in the
impugned chart/table uploaded on the official website on 12/13.11.2021.
Since, this deprivation of petitioners runs contrary to the order dated
19.8.2021 and provisions of admission rules, the impugned entries of the
chart/table are set aside. The respondents are directed to treat the petitioners
as in-service candidates for Postgraduate Degree Course and consider their
claim for the same in accordance with law.
24. The petition is partly allowed to the extent indicated above.
(SUJOY PAUL) (ARUN KUMAR SHARMA)
JUDGE JUDGE
bks/PK/ahd
PARITOSH KUMAR
2022.01.14
11:48:47 +05'30'
