Madhya Pradesh High Court
Dr. Rajni Shende vs The State Of Madhya Pradesh on 16 March, 2022
Author: Sujoy Paul
-: 1 :-
W.P. No.3138 of 2022
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16th MARCH, 2022
WRIT PETITION No. 3138 of 2022
BETWEEN :-
Dr. Rajni Shende,
Medical Officer, C.H.C. Katangi, Balaghat,
W/o Mr. Hemant Meshram,
aged 40 years,
R/o Anand Marg, Narmada Nagar,
Balaghat, (M.P.).
........Petitioner
(By Shri Siddharth Radhe Lal Gupta, Advocate)
AND
1. State of Madhya Pradesh,
Through its Principal Secretary,
Department of Public Health and Family Welfare,
Vallagh Bhawan, Bhopal, (M.P.),
2. State of Madhya Pradesh,
Through its Director,
Department of Medical Education,
5th Floor, Satpura Bhawan, Bhopal, (M.P.),
3. Director/ Commissioner,
Department of Medical Education,
5th Floor, Satpura Bhawan, Bhopal, (M.P.), 462004,
4. Commissioner,
Department of Health, 6th Floor, Satpura Bhawan,
Bhopal, (M.P.) 462004,
......Respondents
(By Smt. Janhvi Pandit, Deputy Advocate General)
-: 2 :-
W.P. No.3138 of 2022
Whether approved for YES
reporting
Law Laid down :- 1. M.P. Chikatsa Shiksha Pravesh Niyam 2018
(Admission Rules)-In service- candidate- The
regular/ contractual government employee who
after obtaining NOC from employer got
himself/herself registered in the portal alone can
become 'in-service candidate'.
Rule-6 of Admission Rules-Registration: The
selected candidate needs to get herself registered
within prescribed time limit by furnishing
necessary information on the official portal in
prescribed format.
2. Interpretation of Statute: If language of statute
is clear and unambiguous, it has to be given effect
to irrespective of the consequence.
3. Interpretation of statute: If statute prescribes a
thing to be done in a particular manner, it has to be
done in the same manner and other methods are
unknown to law.
4. The technical defect- Proof of qualification:-
The candidate is required to submit necessary
application/candidature within stipulated time and
before the cut-off date prescribed. If document in
support of qualification is not furnished although
candidate possessed it, could have been furnished
in certain circumstances as per the judgment of
Supreme Court in Charles K. Skaria and others
(Supra). In the instant case, said judgment cannot
be made applicable because candidate did not get
herself registered within stipulated time and did not
furnish necessary information in prescribed format.
O R D E R
SUJOY PAUL, J.
The petitioner a MBBS qualified Doctor working as Medical Officer
in Department of Health Services, Government of Madhya Pradesh and
currently posted at Tahsil Katangi, district Balaghat has filed this petition
under Article 226 of the Constitution of India seeking a direction to treat her
as an 'in service candidate' as per Admission Rules, 2018 and accordingly
extend her the benefit of 30% reservation/source of entry with additional
incentive marks to the tune of 30% as per provisions of Regulation 9 (IV) of
W.P. No.3138 of 2022
the M.C.I. Regulations 2000 in the on going counselling process for
admission to Post Graduate (P.G.) Course.
2. Briefly stated, relevant facts are that the petitioner was appointed as
Medical Officer in April 2011 (Annexure P/1). After rendering services in
District Hospital, Betul for some time, she was transferred and posted to
Community Health Centre, (C.H.C.), Katangi, District Balaghat in January
2017. The certificate issued by Chief Medical & Health Officer, (C.M.H.O.)
is Annexure P/2.
3. Indisputably, petitioner belongs to S.C. category and is a Government
Employee. The petitioner pleaded that the Commissioner, Department of
Medical Education through communication dated 12.11.2021, (Annexure
P/4) directed all P.S.Us., District Hospitals, C.M.H.Os. etc. to send a list of
all the 'in-service Doctors' rendering services in their respective Districts. It
was the responsibility of said officers to furnish such information of Doctors
to the D.H.S. and D.M.E. so that the candidates who appeared in the NEET,
P.G. Examination can be given the benefit of 30% reservation.
4. The Government opened the counselling process through public notice
dated 12.10.2021 (Annexure P/5). In this notice, it was specifically
mentioned that concerned 'in-service Medical Officer' must get their
registration done as 'open category candidate' in the registration which is to
start from 11.10.2021 and to be continued till 17.10.2021. It was further
made clear that post registration, prior to counselling, the status of the
concerned in-service Medical Officer shall be automatically updated by the
Counselling Authority/State Authority as 'in-service candidate' and they
shall be given intimation in this regard.
W.P. No.3138 of 2022
5. The D.M.E. issued another public notice dated 12.01.2022 mentioning
details of all the 'in-service candidates' working with the D.H.S., M.P. and
other Health Departments, which was required to be automatically updated
on the website by latest on 17.1.2022. No intimation was given for any 'in-
service candidate' to approach C.M.H.O. or the D.H.S. to claim the
candidature for 'in-service category' reservation but primarily it was through
and through the responsibility of the concerned C.M.H.O. and D.H.S, M.P.,
wherein concerned employee was working to furnish the details.
6. Shri Siddharth Radhelal Gupta, learned counsel for petitioner submits
that the merit list was uploaded on the official website of D.M.E. in the 'in-
service category' on 17.1.2022 (Annexure P/7). The petitioner's name did
not find place in the merit list of 'in-service candidate'. Indeed, it is
mentioned in overall merit list prepared for open category candidates ('non
in-service') at sl. no. 2760. Hence, petitioner was treated as SC/reserved
category candidate but not 'in-service candidate'.
7. In the previous year also, while taking NEET examination, the
C.M.H.O. issued a form 8-A certificate to her for getting the benefit of
incentive marks of 30%. The said form 8-A is filed as Annexure P/9.
8. In the current year, C.M.H.O. realized his fault and issued the form 8-
A certificate to the petitioner belatedly on 20.1.2022 (Annexure P/10). This
form contains an entry that petitioner has served in remote, difficult and rural
areas.
9. When petitioner found her name missing in the merit list of 'in-service
candidate' (Annexure P/8), she started representing the matter before the
authorities. One such representation dated 24.1.2022 is filed as Annexure
W.P. No.3138 of 2022
P/11. No corrective steps were taken by the department. On the contrary,
petitioner was treated as S.C. category candidate, which is evident from
Annenxure P/12.
10. The contention of petitioner is that as per definition of 'in-service
candidate' mentioned in the Admission Rules of 2018, the petitioner who is
working as Medical Officer is automatically covered as 'in-service
candidate'. Rule 14 (4) starts with the requirement of procuring NOC from
the employer, i.e. D.H.S., M.P. It is argued that this requirement is only
directory and not mandatory because no penal consequences of the absence
of said NOC prior to registration with the Online Portal is provided. Thus,
for want of a technical document of NOC, petitioner cannot be deprived of
the fruits of an 'in-service candidate'.
11. The next contention of petitioner is based on regulation no.9(4) of
M.C.I. P.G. Regulations 2000. It is urged that as per order dated 28.2.2019,
the petitioner has worked in schedule area (Entry No. 31 in Schedule 2), and,
therefore, she is entitled to get additional incentive marks. If said marks are
given, she will be entitled to get seats of M.S. Obstetrics & Gynecology in
M.G.M. Indore or G.M.C., Bhopal. Choice filling report (Annexure P/17) is
relied upon for this purpose.
12. It is further urged that if petitioner succeeds, she would be allotted the
singular reserved seat for S.C. category (Women) in the Obstetrics &
Gynecology in M.G.M. Indore and Gandhi Medical College, Bhopal. This
claim is based on the submission that if 30% marks which the petitioner is
entitled to are added to her existing marks, i.e. 317 + 30% of 317 (95.1) is
equal to 412 marks. Thus, she would be the highest scorer among all the SC
W.P. No.3138 of 2022
category candidates in the separately prepared merit list of 'in-service
candidates', who are having a separate source of entry of 30% in M.P.
13. To sum up, learned counsel for the petitioner urged that :-
(A) That if on the date of application, the petitioner was possessing
eligibility and experience for being considered and selected as a 'in-service
candidate', the said benefit cannot be denied for the absence of any
eligibility/experience certificate. If during counselling, said certificate is
produced by the petitioner, no hyper technical approach should deprive the
petitioner from the fruits of consideration and selection. Reliance is placed
on (1980) 2 SCC 752 (Charles K. Skaria & Ors. Vs. Dr. C. Mathew &
Ors.), (2019) 5 SCC 793 (Food Corporation of India Vs. Rimjhim),
(2005) 9 SCC 779 (Dolly Chhanda Vs. Chairman, JEE & Ors.) and
judgment of Madras High Court in W.P. No. 8223/2017 & WMP No.8978
of 2017 and WMP 8978/2017 (R. Vimalkanth Vs. Food Corporation of
India).
(B) If all necessary requirements of any application are fulfilled by the
petitioner then for want of a document like NOC from a particular authority,
the intended benefit under the applicable rules must not be denied. Reference
is made to (2015) 3 M.P.L.J. 657 (Gyanjeet Sewa Mission Trust Vs.
Union of India and Ors.), (2014) 14 SCC 675 (Royal Medical Test
(Registered Vs. Union of India & Anr.), (2015) 10 SCC 80 (Ponnaiyah
Ramajayam Institute of Science & Technology Trust Vs. Medical
Council of India & Anr.), 2015 SCC OnLine, Ker. 3193 (Medical Council
of India Vs. S.R. Educational and Charitable Trust, 2021 SCC OnLine
W.P. No.3138 of 2022
Del 3896 (Career Convent Educational and Charitable Trust Vs. Union
of India and Another).
14. Without prejudice to the aforesaid contentions, Shri Gupta submits
that in case this court does not want to upset the process, which has already
taken place, the petitioner can be permitted to participate in the mop up
round as in-service SC/Women category candidate. In view of interim orders
passed by this court, the respondents are bound to give appropriate seat to
the petitioner.
15. Ms. Janhvi Pandit, learned Deputy Advocate General opposed the
prayer of petitioner and urged that the petition is misconceived. The Public
Health & Family Welfare Departments order dated 28.2.2019 (Annexure
P/13) shows that as per Clause 3.3 and 3.7 of the said order all the eligible
'in-service candidates' (Medical Officers) were required to submit their
applications alongwith the result of their examination to the Directorate of
Health Services, but thereafter, the Directorate of Health Services was
required to calculate the marks obtained by the 'in-service candidates' and
prepare a complete list of the candidates.
16. Application in prescribed form 8, 8-A and Annexure C were required
to be submitted to the concerned CMHO, who in turn, was required to
forward the same to the Directorate of Health Services. For this reason, the
letter dated 29.9.2021 (Annexure AR/1) was issued by the Directorate of
Health Services addressed to all the Chief Medical & Health Officers
required 'in-service candidates' to submit their details in the said prescribed
forms before 4.10.2021, the last date for forwarding the list of 'in-service
W.P. No.3138 of 2022
candidate' to the Directorate, Health Services. A copy of letter dated
29.9.2021 is filed with additional return as (Annexure AR/1).
It is further averred that the Directorate issued a tentative list on
2.11.2021 on the basis of information of candidate received in form 8 and 8-
A and called the objection from the in-service candidates whose names have
been left-over/ not included in the list of in-service candidates. Petitioner
despite being aware about the said list which did not contain her name, not
raised any objection. The petitioner's representation dated 24.1.2022
(Annexure P/11) shows that she admittedly did not furnish necessary
information to the Directorate within stipulated time.
17. Learned Deputy Advocate General strenuously contended that entire
process is conducted in a centralized manner and the details of the orders
issued are uploaded on the official website of Directorate of Health Services,
i.e. www.mponline.gov.in. All candidates viewed it and acted in accordance
with information contained therein. A copy of list of orders uploaded on the
website is filed as Annexure AR/2. Thus, it was the duty and responsibility
of the candidate concerned to be vigilant and submit her application in the
prescribed format in time as prescribed by the rules, guidelines and orders
issued in this regard from time to time. The petitioner was required to submit
her application in form 8, 8-A and Annexure- C in time to the concerned
CMHO, who in turn was required to forward the same to DHS.
18. Ms. Janhvi Pandit, learned Deputy Advocate General placed heavy
reliance on the language employed in definition of 'in-service candidate' as
per Admission Rules as well as on Rule 14 (4). She submits that a conjoint
reading of the definition and letter dated 29.9.2021 (Annexure AR/1)
W.P. No.3138 of 2022
aforesaid, the methodology prescribed for registration and cut-off date upto
which petitioner was required to submit her candidature clearly shows that if
petitioner failed to do so, she cannot take advantage of her own wrong and
claim status of 'in-service candidate'.
19. Based on the judgments of Supreme Court reported in AIR 1999 SC
3558 (Chandra Kishore Jha Vs. Mahavir Prasad and others), AIR 2001
SC 1512 (Dhanajaya Reddy Vs. State of Karnataka), it is argued that if
statute provides that a thing is to be done in a particular manner, then it has
to be done in the same manner and in no other manner than the manner
prescribed. Since, petitioner has not followed the said manner, the petitioner
does not deserve any relief.
20. AIR 1997 M.P. 56 (State of M.P. Vs. Jitendra Kishore Bhargava) is
pressed into service by contending that in the mid way when
selection/counselling process is in full swing, interference is not warranted.
For the same purpose 2002 (7) SCC 252 (M.C.I. Vs. Madhu Singh) is
relied upon.
21. Lastly, Ms. Pandit submits that in W.P. No. 14736/2019 (Ayushi
Sarogi Vs. State of M.P.) it was clearly held that sanctity of admission
process must be maintained. If candidature is not in consonance with the
prescribed procedure, no relief is due to the candidate.
22. Shri Gupta and Ms. Janhvi Pandit filed brief synopsis in support of
aforesaid submissions.
23. The parties confined their arguments to the extent indicated above.
24. We have heard the learned counsel for the parties at length and
perused the record.
W.P. No.3138 of 2022
25. Before dealing with the rival contentions advanced at the Bar, it is
apposite to reproduce the notice dated 12.10.2021, which reads as under :-
fnukad [email protected]@2021
@@ lsokjr vH;fFkZ;ksa gsrq vko';d [email protected]@
leLr ik= lsokjr vH;fFkZ;ksa ¼LokLF; lsok;sa ,oa
fpfdRlk f'k{kk ds vUrxZr 'kkldh; egkfo|ky; esa
dk;Zjr izn'kZd] V~;wVj ,oa fpfdRlk vf/kdkjh½ dks
lwfpr fd;k tkrk gS fd e/;izns'k jkT; Lrjh; la;qDr
dkmaflfyax uhV ih-th- 2021 ds fy, fu/kkZfjr le;
lkj.kh vuqlkj iathdj.k dh izfdz;k (Registration)
fnukad [email protected]@2021 ls fnukad [email protected]@2021
rd dh tkuh gS] vr% os viuk jftLVªs'ku vksiu
vH;FkhZ dh Js.kh esa mijksDr le;kof/k esa vfuok;Z
:i ls dj ysaA
ik= iathd`r vH;FkhZ dh vksiu Js.kh dks
iathd`r vH;fFkZ;ksa dh esfjV lwph iznf'kZr djus ls iwoZ
lsokjr esa viMsV (Update) dj fn;k tk;sxkA viMsV
djus ds mijkUr lsokjr vH;FkhZ ds jftLVMZ eksckbZy
uacj ij iqu% viMsVsM jftLVªs'ku fLyi izkIr djus
laca/kh lwpuk nh tk;sxhA ,sls lsokjr vH;FkhZ vius
Candidate login ds ek/;e ls viuk viMsVsM jftLVªs'ku
fLyi tujsV dj ysaA
lapkyd fpfdRlk f'k{kk
e/; izns'k
26. The definition of 'in-service candidate' as per Admission Rules is
reproduced 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 %
W.P. No.3138 of 2022
27. Rules 6 relates to registration, which reads thus :
6- iath;u]& p;u ijh{kk esa mRrh.kZ vH;FkhZ dks
iksVZy ij vko';d tkudkjh nsrs gq, fofufnZ"V
le;&lhek ds Hkhrj iath;u djkuk gksxkA vH;FkhZ dks
iath;u ds fy, vko';d leLr tkudkjh iksVZy ij]
iath;u ds izi= esa miyC/k djkuk gksxhA tkudkjh
viw.kZ gksus dh n'kk esa iath;u ugah gks ldsxkA iath;u
i'pkr~ iath;u esa nh xbZ tkudkjh esa ifjorZu] la'kks/ku
vFkok vfrfjDr tkudkjh iznk; vFkok Lohdkj ugha dh
tk,xhA
28. The relevant portion of Rule 14 of Admission Rules on which both
the parties placed reliance is as under :-
14- lsokjr vH;FkhZ ds fy, izksRlkgu]&
¼1½ ----------------------------------------------------------------------------------------------
¼2½ ----------------------------------------------------------------------------------------------
¼3½ ----------------------------------------------------------------------------------------------
¼4½ fu;ksDrk ls vukifRr izkIr djus ds i'pkr
iksVZy ij iath;u djus okys lsokjr vH;FkhZ dks
esfMdy dkmafly vkWQ bf.M;k (MCI)@MsUVy
dkmafly vkWQ bf.M;k (DCI) }kjk le;≤ ij
fofufnZ"V vf/kekU; vad nsrs gq, izos'k gsrq vkcaVu ds
fy, mudk ijLij ojh;rk Øe fu;r fd;k tk,xkA
¼5½ lsokjr fpfdRlksa dks vukifRr izek.k&i= tkjh
djus dh 'krZ] ik=rk ,oa p;u vkfn ds ekin.M
e/;izns'k 'kklu dk yksd LokLF; ,oa ifjokj dY;k.k
foHkkx le;≤ ij fu/kkZfjr dj ldsxk ftls iksVZy
ij iznf'kZr fd;k tk,xkA
29. The plain reading of notice dated 12.10.2021 shows that in-service
candidates were required to get themselves registered between 11.10.2021 to
W.P. No.3138 of 2022
17.10.2021. In the pleadings of the writ petition, petitioner has nowhere
pleaded that she got herself registered within the said period mentioned in
the notice dated 12.10.2021. On the contrary, petitioner's representation
dated 20.1.2022 (Annexure P/22) and another representation dated 24.1.2022
filed along with I.A. No.1575/2022 shows that she got herself registered for
DME Counselling on 18th October, 2021 and sent her form 8 and 8-A on
20.1.2022 only. It is thus, crystal clear that petitioner did not get herself
registered even as per 'open category' candidate as per notice dated
12.10.2021 between 11.10.2021 to 17.10.2021. She did not raise any
objection when the tentative list of 'in-service candidates' was issued which
did not contain her name.
30. The petitioner preferred a representation on 20.1.2022 for inclusion of
her name. The requisite form 8 and 8-A were also submitted on 20.1.2022.
The letter dated 29.9.2021 (Annexure AR/1) makes it clear that the medical
officers who have furnished requisite information in form 8 and 8-A within
stipulated time would be entitled for incentive marks. The petitioner,
admittedly did not get herself registered and furnished form 8 and 8-A within
stipulated time.
31. The definition of 'in-service candidate' is clear and unambiguous.
Only such working employee who has obtained no objection from the
employer and thereafter got himself/ herself registered in the portal can be
treated as 'in-service candidate'. This is trite that when language of statute is
clear and unambiguous, it has to be given effect to irrespective of
consequences. [See: Nelson Motis Vs. Union Of India and another 1992
(4) SCC 711 which is recently followed in P. Gopalkrishnan alias Dileep
W.P. No.3138 of 2022
Vs. State of Kerala and another 2020 (9) SCC 161].
32. The procedure of registration finds place in rule 6 of the Admission
Rules. For the purpose of registration, the passed candidate needs to get
herself registered within prescribed time limit. The necessary information
for registration in proper format needs to be furnished failing which
registration is impermissible. A conjoint reading of definition of 'in-service
candidate' and Rule 6 i.e. 'registration' leaves no room for any doubt that in
absence of registration after obtaining NOC and without furnishing requisite
information in proper format petitioner cannot treat herself to be 'in-service
candidate'. The petitioner having failed to register herself as 'in-service
candidate' within stipulated time with correct information, cannot take
advantage of her own wrong. It will not be proper to upset a selection
process midway and put the clock back for a candidate who did not comply
with the requirement of admission rules.
33. So far the proposition 'A' and 'B' raised by petitioner are concerned, it
is apposite to note that in Charles K. Skaria and others (Supra) on which
mainly propositions are based, a notification inviting application was
published by State of Kerala in the Gazette on 2nd February, 1979 wherein
the last date for receipt of application was set down as 31 st March, 1979. The
candidate therein preferred the requisite application within the stipulated
time mentioned hereinabove but did not provide the proof of having
obtained a diploma along with the candidature. In this backdrop, the Apex
Court opined that if candidates secured a diploma before the last date of
submission of candidature, it is prudent to produce evidence of diploma
along with the application but i.e. secondary. Relaxation of the date on the
W.P. No.3138 of 2022
first, is impermissible and illegal but diploma certificate can be produced
later-on i.e. before the date of actual selection.
34. In our consider opinion, even as per judgment of Charles K. Skaria
and others (Supra), the application/candidature was required to be
submitted before the cut-off date. The said judgment is not an authority on
the proposition that registration not made as per admission rules within the
stipulated time will bestow any right to the candidate to get herself registered
as 'in-service candidate' at a later point of time after the cut-off date.
Needless to emphasize that both the propositions based on the judgment of
Charles K. Skaria and others (Supra) and other judgments will not cut
any ice because no judgment cited by Shri Siddharth Radhe Lal Gupta,
Advocate lays down the principle that candidature should be accepted even
when it was not submitted within stipulated time before cut-off date with
requisite documents as per the rules. Thus, judgments cited by the Siddharth
Radhe Lal Gupta, Advocate cannot be pressed into service in the factual
matrix of this matter.
35. We find substance in the argument of Smt. Janhvi Pandit, Deputy
Advocate General that if statute prescribes a thing to be done in a particular
manner, it has to be done in the same manner and other methods are
unknown to law. A Division Bench of this Court has recently followed the
ratio decidendi of the judgments cited by the State in 2021 (3) MPLJ (Cri),
93 (Vishal D. Remeteke Vs. State of M.P. and others). For this reason
also, no relief is due to the petitioner who did not register herself within
stipulated time and did not furnish requisite information in prescribed
formats as per Admission Rules within the said time limit.
W.P. No.3138 of 2022
36. In view of the foregoing analysis, no case is made for interference in
this petition under Article 226 of the constitution. The administration has
acted in consonance with the Admission Rules.
37. Thus, interference is declined and this petition is dismissed. No cost.
(SUJOY PAUL) (DWARKA DHISH BANSAL)
JUDGE JUDGE
bks/Ahd
W.P. No.3138 of 2022
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
WRIT PETITION No. 3138 of 2022
Dr. Rajni Shende,
-Versus-
State of Madhya Pradesh & others
**********
ORDER FOR CONSIDERATION
(SUJOY PAUL)
JUDGE
/03/2022
( DWARKA DHISH BANSAL)
JUDGE
03/2022
POST FOR: /03/2022
(SUJOY PAUL)
JUDGE
/03/2022
Signature Not Verified
SAN
Digitally signed by MOHD AHMAD
Date: 2022.03.16 14:42:04 IST
