Dr Ashwani Kumar S/O Shri Ram ... vs State Of Rajasthan
2022 Latest Caselaw 5866 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil Writ Petition No.9390/2022

Dr. Rakesh Kumar Saini S/o Shri Basanti Lal Saini, Aged About 35
Years, R/o 83/113, Sector-8, Pratap Nagar, Jaipur (Raj.).
                                                                        ----Petitioner
                                      Versus
1.     State of Rajasthan, through Additional Chief Secretary,
       Department          of       Medical         Education,          Government
       Secretariat, Jaipur.
2.     State    of      Rajasthan,          through         Principal      Secretary,
       Department         of     Medical         and      Health,       Government
       Secretariat, Jaipur.
3.     Director (Public Health), Medical and Health Services,
       Swasthya Bhawan, C-Scheme, Jaipur (Raj.).
4.     Principal     Medical      Officer,     Government         BDM       Hospital,
       Kotputali, Jaipur (Raj.).
                                                                  ----Respondents

Connected With

S.B. Civil Writ Petition No. 10044/2022 Dr Ashwani Kumar S/o Shri Ram Kripal, Aged About 31 Years, R/o Housing Board Colony, H.N. 1/1, Churu (Raj.)

----Petitioner Versus

1. State of Rajasthan, through Additional Chief Secretary, Department of Medical Education, Government Secretariat, Jaipur.

2. State of Rajasthan, through Principal Secretary, Department of Medical and Health, Government Secretariat, Jaipur

3. Director (Public Health), Medical and Health Services, Swasthya Bhawan (Raj.)

4. Chairman, NEET PG Admission/Counseling Board 2022, Govt. Dental College (RUHS College Of Dental Sciences).

                                                                  ----Respondents



                                           (2 of 12)              [CW-9390/2022]




For Petitioner(s)          :    Mr.Ashwinee Kumar Jaiman, Adv.
For Respondent(s)          :    Dr.V.B. Sharma, AAG with Mr.Harshal
                                Tholia, Adv. & Mr.Ankit Rathore, Adv.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                     Order
25/08/2022

These two writ petitions involve common issue, as

such, they are being decided by a common order, with the consent

of learned counsel for the parties.

The petitioners are In-Service Doctors working in the

State of Rajasthan and they feel aggrieved by the notification

dated 20.12.2021, whereby the State Government has extended

the benefit of bonus marks to In-service Doctors, who were

posted in rural/remote/difficult areas, prior to their posting during

COVID-19 period in RUHS, Medical Colleges and other designated

Hospitals.

The grievance of the petitioners is that they have also

rendered services by virtue of orders issued by the State

Government, posting them during COVID - 19 period, at aforesaid

places i.e. RUHS and attached Hospitals and COVID-19 designated

Hospitals and only on the basis of their earlier posting in urban

area, the said benefit cannot be denied to the petitioners.

The petitioners have submitted that the benefit of

bonus marks to In-service Doctors is required to be extended to

all the Doctors, who were posted during COVID-19 period, at the

aforesaid places as they form a homogeneous class for the

(3 of 12) [CW-9390/2022]

purpose of getting benefit of bonus marks and the State

Government, while issuing the notification dated 20.12.2021, has

acted in arbitrary and discriminatory manner by creating an

artificial classification and the same is violative of Article 14 of the

Constitution of India.

Learned counsel for the petitioners Mr.Ashwinee Kumar

Jaiman submitted that initially the petitioners filed the writ petition

challenging the conditions which were prescribed in the

circular/letter dated 03.06.2022, containing note No.5 as it did not

count the services rendered by the petitioners at RUHS and later

by filing an amendment application, notification itself has been

challenged by the petitioners in the present petitions.

Learned counsel for the petitioners has made following

submissions :-

(I) The impugned action of the respondents while creating

two classes, is arbitrary, discriminatory and having no

rational/nexus for creating two Classes of Medical Officers and by

creating such two classes, no object is sought to be achieved by

the respondents.

(II) Learned counsel for the petitioners submitted that

primary and singular object of awarding of incentive marks is to

recognize service rendered by the Medical Officer during COVID-

19 pandemic and there cannot be a distinction between such

recognition on the basis of previous posting.

(III) The basis and determination of merit of In-service

candidates by giving them incentive marks is provided in

Regulation 9 of the MCI PG Regulations, 2000 and if similarly

situated persons are extended the benefit of services rendered at

RUHS and attached Hospitals & designated Hospitals at District

(4 of 12) [CW-9390/2022]

Headquarters and only because the petitioners were earlier posted

in urban area, they having no control of their posting and transfer

and as such, they cannot be deprived from getting the benefit of

grant of bonus marks as In-service candidates.

(IV) The action of the respondents will result into a situation

where services of the petitioners, taken were at par with the

Doctors, who rendered their services and were earlier posted in

rural/remote/difficult areas but will be getting the benefit for doing

the same job and the petitioners only on their earlier place of

posting, would be deprived to get the benefit.

(V) Learned counsel submitted that the decision taken by

the State Government before issuing a notification dated

20.12.2021 was not proceeded by due deliberation and relevant

factors were not kept in mind, while issuing the notification dated

20.12.2021.

Learned counsel submitted that this Court had

specifically asked the respondents to file specific affidavit to

explain as what considerations were kept in mind by the State

Government before taking the decision or at the time of issuing

the notification. However, the affidavit filed by the respondents

before this Court, does not disclose the due deliberation and the

specific query which was put before the Competent Authority was

never answered by the State Authorities and even legal opinion

sought from the learned Advocate General, did not answer the

specific query with regard to the grant of benefit of bonus marks

to working In-service Doctors, who rendered their services during

COVID-19 period and were posted at urban area before their

transfer and posting done by the State Government.

(5 of 12) [CW-9390/2022]

Learned counsel submitted that non-consideration of

relevant factors before taking the decision is an arbitrary exercise

of power and the same is required to be declared bad and illegal

by this Court.

Learned counsel for the petitioners in support of his

submissions, places reliance on the following judgments:-

1. Virendra Krishna Mishra Vs. Union Of India reported

in [(2015)2 SCC 712].

2. Director General, CRPF & Ors. Vs. Janardan Singh &

Ors. in Civil Appeal No.5850/2011.

3. Union of India Vs. Dinesh Engineering Corporation

& Another in Civil Appeal No.5624/1994.

4. The judgment passed by the Madhya Pradesh High Court

in the case of Dr.Brijesh Yadav & Ors. Vs. The State of

M.P. and Ors. in Writ Petition No.4316/2017, dated

01.05.2017.

Learned counsel on the strength of said judgments

submitted that if there is no intelligible differentia then in absence

of valid classification, the action of the State is required to be

declared arbitrary.

Learned counsel, on the strength of a judgment passed

in the case of Union of India Vs. Dinesh Engineering

Corporation & Another (supra) as referred hereinabove,

submitted that policy decision of the State Government is not

immune from judicial scrutiny, if the same is passed by the

Authorities without considering the relevant factors and such

decision is required to be termed arbitrary as it will be treated as

violative of the mandate of Article 14 of the Constitution of India.

(6 of 12) [CW-9390/2022]

Learned counsel for the respondents-State Mr.Harshal

Tholia submitted that prayer sought by the petitioners in the writ

petitions, may not be granted by this Court, as the decision which

has been taken by the State Government, cannot be termed as

arbitrary in any manner.

Learned counsel for the respondents-State submitted

that the State Government has taken a conscious decision to

extend the benefit of bonus marks to those In-service Doctors

who were earlier posted in rural/remote/difficult areas and by way

of working arrangement, these Doctors were asked to work during

COVID-19 period in designated Hospitals.

Learned counsel submitted that during posting of these

Doctors at designated Hospitals, even their salary was drawn from

the places, where they have been earlier working and due to

COVID-19 period, the benefit was required to be extended to

these categories of Doctors and as such, only because of exigency

of service, if they came to be posted at designated Government

Hospitals, such Doctors were not required to be deprived from

getting the benefit of bonus marks as In-service candidates.

Learned counsel for the respondents-State submitted

that the State Government has not made any mini classification or

discriminatory classification between the two categories of In-

service Doctors and it is absolutely wrong on the part of the

petitioners to club themselves with those Doctors, who were

earlier posted in rural/remote/difficult areas.

Learned counsel submitted that place of posting of In-

service Doctors before their posting at designated Hospital was a

relevant consideration for the State Government to take the

decision to protect the service benefit of such employees and for

(7 of 12) [CW-9390/2022]

granting any benefit to other Doctors, who were posted during

COVID-19 period.

Learned counsel submitted that if the (intelligent

differentia) put forward by the petitioners is accepted by this

Court, the same would amount that all those Doctors, who

rendered their services during COVID-19 period, are required to

be given benefit as In-service candidates.

Learned counsel submitted that the petitioners or for

that matter any In-service Doctor do not have a vested right to

claim bonus marks and it is only the Competent Authority by

keeping in mind the relevant considerations, can extend the

benefit of bonus marks.

Learned counsel further submitted that the affidavit

filed before this Court clearly discloses that due deliberation had

taken place before granting benefit to such In-service Doctors and

after seeking legal opinion from the highest legal office of the

State i.e. Advocate General, the Competent Authority has

accordingly passed the order and the notification was issued.

Learned counsel further submitted that the policy

decision of the State Government is based on reasonable

considerations which were to take due care of In-service Doctors

who were already posted in rural/remote/difficult areas and if such

Doctors were to be deprived from getting benefit of bonus marks

as In-service Doctors, the same would have resulted into causing

grave prejudice to these Doctors, who are already rendering their

services in the rural/remote/difficult areas.

Learned counsel submitted that the State Government

has fulfilled the twin test of making a reasonable classification

between the In-service Doctors, who are posted in Urban area and

(8 of 12) [CW-9390/2022]

non-urban area and the object of giving bonus marks to such In-

service Doctor has already been kept in mind.

Learned counsel for the respondents-State further

submitted that the petitioners, merely by their posting during

COVID-19 period at designated Hospitals, will not become eligible

to get the bonus marks as their posting during COVID-19 period,

was required as exigency of service and only because the

petitioner came to be posted at such distinct places, no benefit

can be extended to them.

Learned counsel for the respondents has also placed

reliance on the judgment passed by the Division Bench in the case

of Dr.Neha Choudhary Vs. State of Rajasthan & Ors. and

other connected matters D.B. Special Appeal (Writ)

No.201/2022 dated 25.01.2022 and the judgment passed by the

Punjab & Haryana High Court in the case of Dr.Parampreet Kaur

& Ors. Vs. State of Punjab & Another in CWP No.12803-

2020(O&M), dated 01.09.2020.

Learned counsel, on the strength of said judgments,

submitted that In-service Doctors cannot claim any vested right to

get the bonus marks, as it will always be independent policy

decision of the State Government to extend the benefit to certain

candidates by keeping in mind the relevant consideration.

I have heard the submissions made by learned counsel

for the parties and perused the material available on record.

The primary issue before this Court is to decide the

right of the petitioners of award of bonus marks as In-service

Doctors, while they were posted at designated Government COVID

Hospitals.

(9 of 12) [CW-9390/2022]

This Court finds that the petitioners were earlier posted

at different places and those areas were not rural/remote/difficult

areas. The posting of the petitioners due to COVID-19 pandemic,

at different designated Hospitals, necessarily was requirement of

administrative exigency and as such, the petitioners were called

upon from different places to work at designated Hospitals.

This Court finds that the State Government, as such,

has nowhere extended the benefit of services rendered during

COVID-19 period and all the persons, who were working at

different places, were asked to work during COVID-19 - difficult

situation and as such, the Doctors were also called upon from

different places at designated hospitals.

This Court finds that the purpose of grant of bonus

marks to In-service Doctors is primarily for the reason of

rendering their services in rural/remote/difficult areas and if such

Doctors were rendering their services prior to their

posting/transfer during COVID-19 period at designated Hospitals,

the same was not to result to affect their rights in any manner.

This Court finds that if the State Government has kept

in mind the relevant consideration of protecting the service

conditions of those In-Service Doctors, who were earlier working

in rural/remote/difficult areas, then their postings due to

administrative exigency, were not to result into any loss to them

for the purpose of grant of benefit of bonus marks.

The submission of learned counsel for the petitioners

that the petitioners and other In-Service Doctors, who were

posted during COVID-19 pandemic at designated Hospitals, form a

same class and there could not have been any further

classification between them, this Court finds that the said

(10 of 12) [CW-9390/2022]

submission is not to be accepted by this Court, as it cannot be

held that the Doctors, who were earlier posted in urban area and if

they came to be posted during COVID-19 at designated Hospitals,

they will form a same class.

The submission of learned counsel for the petitioner

that it is the service which is rendered during COVID-19, which is

important and the prior place of posting of the petitioners is not

relevant, this Court finds that the said submission cannot be

accepted by this Court, as the petitioners prior to their posting

during COVID-19 at designated Hospitals, were rendering their

services in urban area and after rendering their services during

COVID-19, either were reverted back to their original place of

posting or they were not posted in rural/remote/difficult areas.

This Court finds that if the State Government has kept

in mind the service conditions of In-service Doctors, working at

designated hospitals and such period is to be protected, the same

decision cannot be said to be arbitrary from any stretch of

imagination.

The submission of learned counsel for the petitioners

that the policy decision of the State Government suffers from

arbitrariness as neither there was intelligible differentia or object

in mind of the State Government, which they wanted to achieve,

suffice it to say by this Court that if proper classification is done by

the policy makers of the State Government and there is a reason

for granting any benefit in favour of such persons, then it cannot

be said that the policy makers of the State Government, has not

kept in mind the relevant considerations.

This Court finds that counsel for the petitioner has

placed reliance on the judgment passed by the Apex Court in the

(11 of 12) [CW-9390/2022]

case of Director General, CRPF & Ors. Vs. Janardan Singh

and others (supra).

This Court finds that the Apex Court in the said case

was considering the issue about the place of posting of those

petitioners therein and their Headquarters was at a different place

and as such, the Apex Court found that only because of the

Headquarters being at different places, persons were not to be

deprived of the Special Duty Allowance and as such, only on the

basis of the posting of the particular persons without their

Headquarter at the same place, such persons could not have been

denied the benefit of Special Duty. This Court finds that the said

judgment is of little assistance to learned counsel for the

petitioners.

The reliance placed by learned counsel for the

petitioners on the judgment passed by the Apex Court in the case

of Virendra Krishna Mishra (supra), this Court finds that the

Apex Court has reiterated the principle that there has to be

intelligible differentia and object which is required to be achieved,

otherwise such action of the State Government will suffer from

arbitrariness. This Court finds that if the State Government has

kept in mind the intelligible differentia and the object behind it,

then the same cannot be termed as violative of any rights of the

petitioners so also violative of Article 14 of the Constitution of

India.

Learned counsel for the petitioners also places reliance

on the judgment passed by the Apex Court in the case of Union

of India Vs. Dinesh Engineering Corporation and Anr.

(supra), this Court finds that the Apex Court has reiterated the

principle that if any administrative decision or a policy decision is

(12 of 12) [CW-9390/2022]

taken without considering the relevant facts, the same has to be

termed arbitrary decision and if it is arbitrary, then the action of

the State has to be declared as violative of mandate of Article 14

of the Constitution of India.

This Court finds that in the present case as per

explanation furnished in the additional affidavit, the decision,

which was taken by the respondents, was taken after keeping in

mind the relevant facts and as such, the decision cannot be

termed as arbitrary.

The reliance placed by learned counsel for the

petitioners on the judgment passed by the Madhya Pradesh High

Court in the case of Dr.Brijesh Yadav and Ors. Vs. The State

of M.P. and Ors. (supra), this Court finds that the issue before

the said Court was in respect of defining the area i.e. difficult area

or remote area and the State was required to keep in mind the

relevant considerations for defining such areas and as such, the

said judgment is of little assistance to the submissions made by

learned counsel for the petitioners.

This Court finds that no right of the petitioners has

been violated by the State Government and as such, the petitions

being devoid of merit, are dismissed accordingly.

A copy of this order be placed in connected petition.

(ASHOK KUMAR GAUR), J

Himanshu Soni/93-94

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