Dr. Naveen Jakhar S/O Shri Bhagwan vs State Of Rajasthan
2022 Latest Caselaw 1409 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              D.B. Special Appeal Writ No. 295/2022

1.    Dr. Naveen Jakhar S/o Shri Bhagwan, Aged About 30
      Years, Resident Of Flat No. 211, Elena - 2 Kajaria Greens,
      Bhiwadi, Alwar, Rajasthan.
2.    Dr. Surendra Purohit S/o Shri Jogaram Purohit, Aged
      About 31 Years, Resident Of Village Chitalwana, Jhalore,
      Rajasthan.
3.    Dr. Arvind Bishnoi S/o Shri Punmaram Bishnoi, Aged
      About 30 Years, Resident Of Wadabhadavi, Jhalore,
      Rajasthan.
4.    Dr. Nafeesh Ahmed S/o Ilmuddin, Aged About 29 Years,
      Resident Of Ratangarh, Churu, Rajasthan.
5.    Dr. Praveen Kumar S/o Asuram, Aged About 30 Years,
      Resident Of Chitalwana, Jhalore, Rajasthan.
6.    Dr. Manjeet Singh Ola S/o Shri Mahaveer Prasad, Aged
      About    32    Years,      Resident        Of    Shastri   Nagar,   Sikar,
      Rajasthan.
7.    Dr. Vikas Purushottam S/o Shri S L Purushottam, Aged
      About 30 Years, Resident Of Bhilwara, Rajasthan.
8.    Dr. Suresh Kumar S/o Shri Gangaram, Aged About 31
      Years, Resident Of Kalda, Jhalore, Rajasthan.
9.    Dr. Makhan Lal Yadav S/o Shri Mp Yadav, Aged About 30
      Years, Resident Of Rajasamand, Rajasthan.
10.   Dr. Hemant Kumar S/o Narsa Ram, Aged About 31 Years,
      Resident Of Sirohi, Rajasthan.
11.   Dr. Bala D/o Bhanwar Lal, Aged About 31 Years, Resident
      Of Sanchore, Jhalore, Rajasthan.
12.   Dr. Bhanwar Lal Bishnoi S/o Sonaram, Aged About 30
      Years, Resident Of Raniwada, Jhalore, Rajasthan.
13.   Dr. Dinesh Kumar Vishnoi S/o Ramlal Vishnoi, Aged About
      29 Years, Resident Of Sewari, Jhalore, Rajasthan.
14.   Dr. Kailash Mahla S/o Mohandas, Aged About 31 Years,
      Resident Of Nagaur, Rajasthan.
15.   Dr. Mahesh Kumar S/o Shri Amar Singh, Aged About 34
      Years, Resident Of Behror, Alwar, Rajasthan.
16.   Dr. Vipin Yadav S/o Shri Vivekanand, Aged About 31


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       Years, Resident Of Behror, Alwar, Rajasthan.
                                                                   ----Appellants
                                    Versus
1.     State Of Rajasthan, Through Its Principle Secretary,
       Department       Of      Medical        And       Health      Department,
       Government Secretariat, Jaipur, Rajasthan.
2.     Principle Secretary, Department Of Medical Education
       Department, Government Secretariat, Jaipur, Rajasthan.
3.     Director (Public Health), Department Of Medical And
       Health Services, Swasthya Bhawan, Tilak Marg, C -
       Scheme, Jaipur, Rajasthan.
4.     Chairman,     Neet      Pg    Medical        And     Dental    Admission/
       Counselling Board -2021 And Principal, Govt. Dental
       College, Subhash Nagar, Behind T.b. Hospital, Jaipur,
       Rajasthan.
5.     Medical Counselling Committee, Directorate General Of
       Health   Services,      Department           Of    Health     And   Family
       Welfare, New Delhi Through Secretary.
                                                                ----Respondents

For Appellant(s) : Mr. N.K. Maloo, Sr. Adv. assisted by Mr. Abhimanyu Singh Yadhuvashi For Respondent(s) : Mr. Harshal Tholia on behalf of Dr. V.B. Sharma, AAG Mr. Y.S. Thillahari though VC for intervenor

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

10/02/2022

This appeal is filed by the original petitioners to challenge the

judgment of the learned Single Judge dated 01.02.2022 passed in

S.B. Civil Writ Petition No.687/2022-Dr. Naveen Jakhar and Others

Vs. State of Rajasthan and Others.

Briefly stated the facts are that the National Board of

Examinations annually conducts National Eligibility-cum-Entrance

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Test (for short 'NEET') for post-graduation medical courses. Notice

for conducting such examination for the year 2021 was issued on

23.02.2021. The last date for receiving the examination forms was

15.03.2021. However due to spread of Corona-virus across the

country, the examinations were postponed and finally conducted

only on 11.09.2021. The result of NEET, 2021 was declared on

28.09.2021.

The State Government has a policy of awarding additional

marks by way of incentive up to 10% of the marks obtained by

the candidate for each year of service put in by him or her in

remote, difficult or rural areas up to a maximum weightage of

30% of the marks. This flows from proviso to sub-regulation (4) of

Regulation 9 of the Medical Council of India, Post Graduate Medical

Education Regulations, 2000 which policy also the State

Government follows. The State Government has also notified the

remote, difficult and rural areas where posting of the doctors

would qualify for such additional weightage in NEET results.

The State Government had provided a cut-off date of

30.04.2021 for reckoning the experience of the candidate for the

said purpose of awarding additional marks. However by an order

dated 08.01.2022 the State Government modified its previous

decision and extended the cut-off date for considering the

experience of in-house doctors to 30.09.2021. This decision of the

State Government gave rise to two sets of challenges. The in-

house doctors in case of Dr. Neha Choudhary approached the

Single Judge and prayed that such cut-off date should be

extended till the first date of counselling for admissions. The

counter-challenge came from the candidates who did not benefit

out of this extension. In case of Dr. Neha Choudhary, the Single

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Judge having dismissed the writ petition, appeal was filed before

the Division Bench, D.B. Special Appeal No.201/2022. The appeal

was dismissed by the Division Bench. The following observations

may be noted:-

"13. We may also record as pointed out by the State counsel that there are three groups of litigants. First set of candidates are aggrieved by extension of date to 30.09.2021 under the notification dated 08.01.2022. Such petitions are pending and we clarify that we do not intend to touch on any aspects of the challenge of these candidates. Second set of candidates had approached the Court seeking extension of the cut off date and are satisfied with the Government extending 30.09.2021. They would have or would be withdrawing their petitions. The last set of candidates like the present appellants-original petitioners are those who seek the benefit of incentive marks but are not satisfied with the extension of cut off date to 30.09.2021.

14. Having heard learned counsel for the parties and having perused the documents on record we find that the policy to grant incentive marks to in-house doctors serving in difficult, remote or rural areas has been framed by the State Government by virtue of which for every completed year of service in such year 10% weightage would be granted for the purpose of PG medical course. This would be over and above the marks scored by the candidate in NEET examination. Ordinarily such experience would be considered upto 30th April of the relevant year. Initially in the present admission process also the cut off date prescribed by the State Government was 30.04.2021. However initially on account of spread of corona virus the conducting of NEET examination itself had to be postponed. The examination could be completed only on 11.09.2021. Even thereafter the counselling could not start on account of legal controversies regarding reservations provided in PG medical courses. The State Government taking cognizance of such developments has on its own extended the time limit from 30.04.2021 to 30.09.2021. In our view the same is principally a matter of policy and depends on the discretionary exercise of powers of the State Government. To begin with grant of incentive itself is a policy matter and based on the discretion of State authorities. Any extension for considering the experience is also part of such discretionary exercise of the powers. Unless it is shown that such discretion

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is exercised arbitrarily or malafidely this Court would not interfere in such policy matters.

15. Moreover, as correctly pointed out by the counsel for NMC, the policy of the State is to grant incentive. No candidate has a vested right to claim such incentives, that too dehors the State policy. Such cut off date cannot be kept fluctuating. The date of counselling would depend on several factors. The suggestion that experience gained by the candidate right till the first date of counseling is therefore not acceptable. There is yet another angle to this issue. The perusal of the State policy would show that the incentive is granted to ensure that sufficient numbers of doctors are available to serve in remote, difficult and rural areas. On account of difficult living conditions in such areas these doctors would also suffer a degree of handicap in their preparations of PG medical entrance examinations. To offset such handicap incentive is being offered. Once examination is over, the candidate cannot complain of being disadvantaged in making the preparations as compared to the other candidates. The cut off date of 30.09.2021 prescribed by the State Government therefore requires no interference.

16. In the result, appeals are dismissed."

This judgment we have referred to in detail to make two

points. First is that in this judgment the Court had examined the

broad philosophy behind awarding incentive marks to in-house

doctors performing duties in remote, difficult areas or rural areas.

The second aspect is that the challenge was tested in the context

of those in-house doctors who wanted enlargement of the last

date for considering experience. It was made clear that the Court

has not expressed any opinion with respect to the pending

challenge of the doctors who have challenged the date extension.

The learned Single Judge by the impugned judgment while

dismissing the writ petition of the present petitioners has correctly

assessed this position and came to the conclusion that the

judgment in case of Dr. Neha Choudhary does not decide those

petitions. He therefore proceeded independently to examine the

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challenge of these petitioners but dismissed the same making

following observations:-

"27. This Court finds that the State Government has initially taken a decision by fixing the cut-off date of 30.04.2021 and later on, as a policy decision, the State Government has changed the cut-off date to 30.09.2021. The State Government, in its wisdom and as a matter of policy, thought that benefit to in-service Doctors is required to be extended upto 30.09.2021, as incentive of bonus marks. If the State Government has found that rendering of service in remote, difficult and rural areas entitles a person to certain incentive/bonus marks, then the decision of State Government to confer such benefit upto a particular date cannot be termed as whimsical or malafide. The grant of incentive may not come to an end only by issuing initial notification but if continuation in service in remote, difficult and rural areas gives benefit to in- service Doctors then same is in consonance with the object of granting benefit to the in-service Doctors.

28. This Court finds that fixation of a cut-off date, may be in a given case, cause hardship to a candidate or group of candidates but that per se does not lead to the conclusion that such fixation of date itself is arbitrary. Any cut-off date, which is fixed by the State Government, will always be affecting some of the candidates but at the same time, fixation of cut-off date, if has a degree of inherent randomness, causing hardship to certain group of candidates, the same cannot be a ground to declare such date as arbitrary.

29. This Court finds that the writ Courts, under Article 226 of the Constitution, may not interfere in every decision that is taken on the administrative side and fixing of a cut-off date, will be out of purview of a writ Court until the same is either fixed by keeping in mind the whimsical considerations or fixed in a malafide manner.

30......

31......

32......

33......

34. This Court, while passing the order in the case of Dr. Delip Singh (supra), though has not judged the validity of notification dated 08.01.2021, as has been challenged in the present writ petition, however, the power of the State Government to take a conscious decision of fixing a cut-off date, keeping in mind the relevant considerations and factors, has been

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approved and the said order has also been upheld by the Division Bench of this Court in the case of Dr. Neha Choudhary (supra)."

Appearing for the appellant-original petitioners learned

counsel raised following contentions:-

(i) In the present case, the State Government had initially

prescribed the cut-off date of 30.4.2021 for considering the

experience of the in-house doctors. This was extended to

30.09.2021 after the entire process had begun. He relied on oft

repeated qoute of the Supreme Court that the rules of the game

cannot change once the game has begun.

(ii) He submitted that the State Government has not cited proper

reasons for changing the cut-off date. The government cannot

justify the decision on the basis of extraneous material. Reference

in this respect was made to Supreme Court decision in the case of

Mohinder Singh Gill And Anr. Vs. The Chief Election

Commissioner, New Delhi and Ors., reported in (1978) 1

SCC 405.

(iii) He lastly contended that by virtue of extension of the cut-off

date large number of in-house doctors now qualify for the

weightage of additional marks which has impacted the merit list to

a large extent. This could not have been done by changing the

procedure after the process had begun.

On the other hand, learned counsel for the State opposed

the appeal and contended that the learned Single Judge has given

valid reasons. The State Government had taken into account

prevailing Covid situation and its impact on the conduct of the

examination. It was noticed that the Central Government has also

issued circular extending the period of internship of the doctors.

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The decision taken by the State Government on the basis of valid

consideration and bonafide assessment thereof, should not be

disturbed.

Learned counsel for the intervenors stated that the doctors

who were benefited out of this extension have already secured

admissions and deposited their documents and fees. At this stage

the decision should not be disturbed.

Having heard learned counsel for the parties and having

perused the documents on record we see no error in the view

taken by the learned Single Judge. As is well known, on account of

spread of Corona-virus and its rise in a cyclic manner, much of the

administration has suffered. The conduct of NEET examination was

no exception. As noted, the examination for which notice was

issued on 23.2.2021 could be conducted only on 11.09.2021. The

original decision of the State Government to consider experience

of in-house doctors for awarding bonus marks was taking in to

account conditions prevailing at the relevant time. Government

had therefore selected 30.04.2021 as the last date. However on

account of subsequent developments and considerable delay in

conduct of the NEET examination, the State Government

consciously took a decision to extend such date to 30.09.2021.

This has a close relation to the conduct of the NEET examination

on 11.09.2021. The reason for extension of the cut-off date as

well as the choice of the date therefore cannot be stated to be

without any basis, arbitrary or unreasonable.

The decision for awarding bonus marks to doctors performing

the duties in difficult, remote and rural areas would have two

purposes. First would be to incentivise the doctors into joining

such duties since it is always difficult for the state administration

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to find willing doctors to serve in such areas. The second

significant purpose would be to ofset for the handicap suffered by

such doctors performing duties under harsh conditions and are

therefore at a disadvantage when it comes to making preparations

for highly competitive examinations such as NEET. If the

examination was therefore delayed and conducted only on

11.09.2021, the decision of the government to push back the last

date for considering the experience of in-house doctors to

30.9.2021 cannot be stated to be arbitrary.

This is not a case where the rules of the game can be said to

have changed after the game has begun. Neither the rules nor the

parameters for conducting the NEET examination are modified. All

that has been done is shifting the date for considering the

experience which was necessary on account of long delay in

conducting the NEET examination due to reasons which could not

be foreseen at the time of fixing the original cut-off date.

The judgment in the case of Mohinder Singh Gill And Anr.

(supra) does not lay down a proposition that the government

decision can be supported only on the basis of what is written in

the order. What it suggests is that such order can be supported

only on the basis of files and file notings which led to issuance of

such order and what did not form part of the official deliberations,

cannot be cited as reasons for arriving at a certain decision.

In the result appeal fails and is dismissed.

                                   (SUDESH BANSAL),J                                                  (AKIL KURESHI),CJ

                                   BRIJ MOHAN GANDHI/11









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