Meena Nitharwal S/O-Shri Babulal ... vs State Of Rajasthan
2022 Latest Caselaw 2130 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 1462/2022

Meena Nitharwal S/o Shri Babulal Nitharwal, aged about 26
years, R/o-Village-Sirsa Bagdi, Post-Nangal, Dist-Jaipur, Raj.
                                                                      ----Petitioner
                                      Versus
1.      State    of    Rajasthan,        through        the        Secretary    to   the
        Government of Rajasthan, Medical Education Department,
        Secretariat, Jaipur.
2.      Dy. Secretary to the Government of Rajasthan, Medical
        Education Department (Group-1) Secretariat Jaipur.
3.      Chairman, NEET PG Admission/Counseling Board- 2021,
        and     Principal,       Government         Dental         College,    Subhash
        Nagar, Behind T.B.Hospital Jaipur, Rajasthan.
4.      Deen     and    Controller,        Jhalawar        Medical      College      and
        attached Hospital, Jhalawar, Raj.
                                                                   ----Respondents

For Petitioner(s) : Mr.Naveen Dhuwan, Advocate. For Respondent(s) : Dr.Vibhuti Bhushan Sharma, Additional Advocate General assisted by Mr.Harshal Tholia, Advocate.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

ORDER

10/03/2022

The instant petition has been filed by the petitioner

challenging the Circular dated 07.07.2021 issued by the Dean and

Controller, Jhalawar Medical College and attached Hospital,

Jhalawar (the respondent No.4) to the extent of prescribing five

years regular and continuous service for the purpose of seeking

No Objection Certificate (NOC) for pursuing higher studies. The

petitioner also seeks a direction for issuing NOC after considering

(2 of 14) [CW-1462/2022]

her eligibility of three years regular service on the post of Senior

Demonstrator for the purpose of her admission in PG Medical

College, as per her merit in OBC category.

2. The brief facts of the case are that the petitioner after

completion of MBBS was appointed on the post of Senior

Demonstrator in the office of respondent No.4 on 22.06.2018 and

since then she has been serving there continuously without any

break. The office of Chairman, NEET PG Admission/Counselling

Board, 2021 issued Instruction Booklet for the State Medical PG

Seats (MD/MS) Allotments-2021 and the petitioner applied and

submitted online application form to appear in the NEET PG

Examination, as she claims to have fulfilled the educational

qualification and other eligibility criteria, prescribed in the

Instruction Booklet.

3. The petitioner appeared in the said examination and result

thereof was declared on 29.09.2021. The petitioner, after NEET PG

Examination, registered herself for counselling and also deposited

the required fee and appeared in the counselling for document

verification on 19.01.2022 but the Counselling Board declared the

petitioner ineligible to allot the seat in the PG Course on the

ground that she was not having NOC issued by her employer and

when the petitioner appeared before the respondent No.4 to issue

NOC, the same was denied to her on the ground that as per the

circular dated 07.07.2021, she has not completed five years of

service and as such the petitioner was not allotted any seat.

4. The petitioner has pleaded that as per the Instruction

Booklet issued by the NEET Counselling Board, there was a

(3 of 14) [CW-1462/2022]

provision for the regularly selected Senior Demonstrators, working

in Non-Clinical and Para-Clinical Departments of the Medical

College, run by the Government, Government Societies and

Government Universities, to give them priority in the same

department (in which they were working) in Non-Clinical and Para-

Clinical PG Degree seats allotment. The Instruction Booklet further

provided that those Senior Demonstrators were to be considered,

who had completed three years of regular service in the same

department and have qualified the NEET Examination.

5. The petitioner has pleaded that Jhalawar Medical College is

run by a Government Society registered under the Societies

Registration Act, 1958 and the governing body of the Society is

mainly consists of Government Officers and as such for all

practical purposes, Jhalawar Medical College is a Government

Medical College. The petitioner has further pleaded that no

distinction can be made between the said College and the other

Government Medical Colleges and the Circular dated 07.07.2021

prescribing different conditions for issuance of NOC, after

completing 5 years, as compared to 3 years of service for other

Government Medical Colleges, has resulted into discriminatory

treatment to the petitioner.

6. The petitioner has also pleaded that the respondents have

not assigned any reason and object as why they have changed the

criteria contrary to the criteria fixed for the persons working on

the same post in the Government Hospitals under the State Rules.

7. Counsel for the petitioner has made following submissions in

support of the writ petition:-

(4 of 14) [CW-1462/2022]

7A. The petitioner had applied to get admission in PG

Course, as per essential eligibility criteria, prescribed in the

Instruction Booklet issued by the NEET PG

Admission/Counselling Board and at the time of making

application, if the criteria fixed for pursuing PG Course for

Senior Demonstrator was to complete three years of regular

service in the same department and the candidate has to be

qualified the NEET PG Examination, then the subsequent

amendment issued by the respondent No.4 dated

07.07.2021, cannot be given retrospective effect.

7B. The petitioner is working on the post of Senior

Demonstrator in a Hospital run by the Government Society

and other persons who are similarly situated i.e. Senior

Demonstrators in the Government Hospitals can be issued

NOC on completion of three years of service and there is no

justification for making artificial discrimination in the same

category of persons and as such, the circular dated

07.07.2021 issued by the respondent No.4 is discriminatory

in nature and violative of Article 14 of the Constitution of

India.

7C. Jhalawar Medical College for all practical purposes is a

Government Medical College and no distinction can be made

between the said College and the other Government Medical

Colleges and Jhalwar Medical College is not be treated like a

Private Medical College and the Circular issued by the

respondent No.4 dated 07.07.2021 is contrary to the

(5 of 14) [CW-1462/2022]

Instruction Booklet, issued by the NEET PG Admission/

Counselling Board, 2021.

8. Counsel for the petitioner has also submitted that prior to

issuance of the Circular dated 07.07.2021, an order dated

05.04.2017 was issued by the Deputy Secretary to the

Government, Department of Medical Education, Jaipur whereby in

continuation of earlier order dated 31.03.2017, the Senior

Demonstrators, selected by the Permanent Selection Committee,

Jhalawar Medical College, Jhalawar and working in Non-Clinical

and Para-Clinical Department of Jhalawar Medical College,

Jhalawar were to be included on priority in Non-Clinical and Para-

Clinical PG seats allotment from the academic year 2017-18

onwards and they were to be considered only after completion of

three years of regular service in the same department and they

qualified the NEET Examination.

9. Counsel further submitted that there is no valid justification

for changing the earlier order dated 05.04.2017 and prescribing

the condition of five years of service before issuance of NOC.

10. Counsel for the petitioner, in support of his submissions,

placed reliance on the judgment passed by this Court dated

22.07.2020 in the case of Dr.Vidushi Sharma Vs. State of

Rajasthan & Ors. [S.B.Civil Writ Petition No.5435/2020]

and connected writ petitions.

11. The respondent No.4 i.e. Jhalawar Medical College, Jhalawar

has filed reply to the writ petition and pleaded that the petitioner

had first applied for NOC for appearing in the NEET PG Entrance

Examination, 2021 on 08.03.2021 and the same was granted to

(6 of 14) [CW-1462/2022]

her on 10.03.2021, in terms of the Circular dated 13.05.2016. The

respondent No.4 has further pleaded that the Circular dated

07.07.2021 was issued wherein detailed procedure for application

and grant of permission to pursue higher studies was provided and

Condition No.1 of the Circular dated 07.07.2021 provides in clear

terms that permission for pursuing higher studies will not be

granted before completion of five years of regular and continuous

service. The said Circular further provides that a candidate is

required to seek initial permission to appear in the examination

from the Dean/Principal and after the candidate clears the

examination, he was to apply before the Dean/Principal and the

same was to be forwarded to the Convener, Jhalawar Hospital and

Medical College Medical Society, subject to conditions mentioned

in the Condition No.4 of the said Circular.

12. The respondent No.4 has pleaded that the petitioner on

17.08.2021 had again applied for NOC for appearing in the NEET

PG Entrance Examination, 2021 which was to be held on

11.09.2021 and the same was issued to her on 18.08.2021 and

the petitioner on 15.01.2022 again applied for permission to

appear in the physical verification in NEET PG Counselling, 2021

and as the petitioner has not completed the mandatory service

period of five years, the permission for appearing in the

counselling process was not issued to the petitioner.

13. The respondent No.4 has also pleaded that the petitioner

was aware of the Circular dated 07.07.2021 and she knew that

she was not eligible to apply for NOC/permission, as she has not

completed the mandatory service period of five years and the

(7 of 14) [CW-1462/2022]

Circular dated 07.07.2021 was issued much prior to the date of

examination i.e. 11.09.2021 and thus, the circular dated

07.07.2021 is not given retrospective effect or retrospective

implementation.

14. The respondent No.4 has pleaded that the petitioner is

governed by Jhalawar Hospital and Medical College Personnel's

(Recruitment and Other Conditions) Employment Rules, 2017 and

the Rajasthan Service Rules, 1951 or the conditions specified in

the NEET PG 2021 notification, do not have any application or

overriding effect over the guidelines and instructions pertaining to

service conditions of the respondent No.4-Institution.

15. This Court, during the course of hearing, had directed the

counsel for the respondent No.4 to file affidavit as what had

prevailed in the mind of the respondent No.4 to prescribe

minimum five years service for a Senior Demonstrator to undergo

the PG Course.

16. In compliance of the order of this Court, counsel for the

respondent No.4 filed an additional affidavit on 28.02.2022 and it

is stated in the said affidavit that the respondent No.4 was facing

difficulty in permitting the candidates/Doctors for higher studies

due to the absence of any clear Rules/provisions for higher studies

in the newly created Regulations of Jhalawar Hospital and Medical

College Society.

17. The respondent No.4 has further submitted that initially vide

Circular dated 13.09.2019 issued by the Rajasthan Medical

Education Society (RAJMES), after completion of three years of

regular and continuous service, approval for the higher studies

(8 of 14) [CW-1462/2022]

was granted, however, the same was amended vide Circular dated

29.10.2020 whereby five years of regular and continuous service

was made compulsory for obtaining approval for higher studies.

The additional affidavit further makes a mention that merger of

Jhalawar Hospital and Medical Education Society in the Rajasthan

Medical Education Society (RAJMES) is under process and,

therefore, the same condition was applied in the Circular dated

07.07.2021.

18. The additional affidavit has further assigned the reason to

change the eligibility due to shortage of Medical Teachers and

vacant posts in the Medical Colleges, operated under the RAJMES

during MNC/MCI inspection and an obligation was placed to

complete three years of continuous and regular service for getting

approval for higher studies and in spite of placing the aforesaid

obligation, still there was shortage of medical teachers during the

MNC/MCI inspection, therefore, instead of three years of

continuous and regular service, it was amended to five years of

continuous and regular service, after approval from the competent

authority.

19. I have heard learned counsel for the parties and perused the

material available on record.

20. It would be appropriate to first quote the relevant portion of

the Instruction Booklet, which provides a provision for Senior

Demonstrators for their admission in the PG Medical Colleges and

the same reads as under:-

"2. State Eligibility Degree seats : XX XX XX

(9 of 14) [CW-1462/2022]

Provisions for Senior Demonstrators: As per Government order dated 31.03.2017 and 05.04.2017, regularly selected Senior Demonstrator working in Non- Clinical & Para Clinical Departments of Medical Colleges run by Government, Government Societies and Government Universities will be given priority (in the same department in which they are working) in Non-Clinical & Para Clinical PG Degree seats allotment. They will be considered only after completing three years of regular service in the same department qualifying the NEET examination."

21. This Court also deems it appropriate to quote the orders

dated 31.03.2017 and 05.04.2017 and the same read as under:-

"Government of Rajasthan Medical Education (Gr-1) Department Jaipur

No.:F7(34)/DME/Acad./2014/2205 Date: 31.03.2017

ORDER

In compliance with the budget announcement by Hon'ble Health Minister on 24 th March 2017 in Rajasthan Vidhan Sabha, RPSC selected Senior Demonstrators working in Non-Clinical & Para-Clinical Departments of Government Medical/Dental Colleges of Rajasthan will be given priority (in the same department in which they are working) in Non- Clinical & Para-Clinical PG seats allotment from academic year 2017-18 onwards. They will be considered only after completing three years of regular service in the same department and qualified NEET exam.

Sd/-

(DL Tanwar) Deputy Secretary to the Government

Government of Rajasthan Medical Education (Gr-1) Department Jaipur

No.:F.7(34)/DME/Acad./2014/2324 Date: 5/4/17

ORDER

In continuation of previous order of this department F.7(34)/DME/Acad./2014/2205 date 31.03.2016 Senior Demonstrator selected by permanent selection committee, Jhalawar Medical College, Jhalawar and working in Non- Clinical & Para-Clinical Department of Jhalawar Medical College, Jhalawar, Rajasthan will also be included on priority (in the same department in which they are working) in Non- Clinical & Para-Clinical PG seats allotment from academic

(10 of 14) [CW-1462/2022]

year 2017-18 onwards. They will be considered only after completing three years of regular service in the same department and qualified NEET exam.

Sd/-

(DL Tanwar) Deputy Secretary to the Government"

22. The condition No.1 of the Circular dated 07.07.2021, being

relevant for the present controversy, is reproduced hereunder:-

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23. This Court is primarily required to examine the validity of

condition No.1 of the Circular dated 07.07.2021 whereby

minimum five years of regular and continuous service is required

for higher studies, as compared to three years service for Senior

Demonstrators who are working in the Government Medical

Colleges. This Court is also required to consider as whether the

Instruction Booklet issued by the NEET PG Admission/Counselling

Board will prevail or the eligibility, as provided by the employer of

the petitioner, will prevail.

24. This Court, on a bare reading of the Instruction Booklet,

finds that a provision was inserted for the Senior Demonstrators

and as per the orders dated 31.03.2017 and 05.04.2017, regularly

selected Senior Demonstrators working in the Non-Clinical & Para-

Clinical Medical Colleges, run by the Government, Government

Societies and Government Universities, were to be given priority in

the Non-Clinical & Para-Clinical PG seats allotment and they were

to be considered only after completing three years of regular

(11 of 14) [CW-1462/2022]

service in the same department and on qualifying the NEET

Examination.

25. The petitioner, considering herself eligible after rendering

three years regular and continuous service, thought to participate

in the NEET PG Entrance Examination, 2021 and when she

qualified the same, after declaration of the NEET PG result, she

thought that eligibility is conferred on her by getting permission/

NOC for pursuing PG Degree Course.

26. This Court finds that the earlier order dated 05.04.2017 had

conferred eligibility on the Senior Demonstrators, working in

Jhalawar Medical College on completion of three years of regular

and continuous service in the same department, however, the

Circular dated 07.07.2021 has now prescribed a condition of

rendering minimum five years of regular and continuous service

for the purpose of seat allotment and for getting NOC from the

higher authorities for higher studies.

27. This Court also finds that the Circular dated 13.09.2019

(filed along with the additional affidavit as Annex.AA1), whereby

the Rajasthan Medical Education Society (RAJMES) provided

conditions for grant of issuance of NOC for higher studies and

three years regular and continuous service was required, was

amended by the subsequent Circular dated 29.10.2020 (filed

along with the additional affidavit as Annex.AA2), whereby earlier

condition prescribed in Point No.1 of the Circular dated 13.09.2019

was substituted with five years regular and continuous service

before grant of permission for pursing higher studies. This Court

finds that amendment was made in respect of those Colleges

(12 of 14) [CW-1462/2022]

which are run by the State Government by forming different

Societies and these Colleges are not Government Medical

Colleges.

28. This Court finds that the decision of Rajasthan Medical

Education Society (RAJMES) was made applicable in respect of all

those Government Societies and Government Universities which

are running the Medical Colleges and as such the Senior

Demonstrators working in these newly established Colleges are

required to render five years regular and continuous service.

29. This Court finds that object of prescribing five years of

regular and continuous service has been explained by the

respondent as there remains shortage of Medical Teachers during

MNC/MCI inspection and since these Colleges are not Government

Colleges and are run by the Societies, these Colleges need to have

proper staff and infrastructure and as such if the faculty and

Senior Demonstrators are required in a particular number, the

employer intends to ensure that faculty is fully available for

discharge of their duties. The distinction is sought to be made by

the respondent between Government Medical Colleges and the

Colleges run by the Government Societies, as the Government

Medical Education Society has recently been formed in the State

of Rajasthan and as such they need to comply with the directions

issued by the MNC & MCI from time to time.

30. This Court finds that the Instruction Booklet, though issued

in January, 2021, permitted the petitioner to claim her eligibility,

however, the condition of grant of NOC was issued by the Circular

(13 of 14) [CW-1462/2022]

dated 07.07.2021 and the same was before the examinations of

NEET PG, 2021 were held.

31. The submission of learned counsel for the petitioner that

Circular issued by the respondent No.4 dated 07.07.2021 cannot

be given retrospective effect, this Court is afraid to accept the said

submission, as the said Circular is not given retrospective effect

and whenever any candidate will apply for grant of permission for

higher studies, the relevant conditions will be considered by the

authorities concerned.

32. The submission of learned counsel for the petitioner that

there is a artificial distinction by the respondents by prescribing

two different conditions for Senior Demonstrators and the College

of the respondent No.4, not being a private College, is also on the

same pedestal and as such no different conditions could have

been provided, suffice it to say by this Court that the Medical

College run by the Government, Government Societies and the

Government Universities fall in different categories and there is a

valid classification for the purpose of considering the service

conditions of the employees working in these Colleges.

33. This Court finds that if the Medical Colleges run by the

Government provides requirement of three years of regular and

continuous service for the purpose of grant of NOC for higher

studies, the same yardstick cannot be applied on the Government

Societies run Colleges, as these Colleges have recently been

established and they need to have proper infrastructure, facility

and faculty.

(14 of 14) [CW-1462/2022]

34. The submission of learned counsel for the petitioner that the

issue with regard to grant of NOC has been considered by this

Court in the case of Dr.Vidushi Sharma Vs. State of Rajasthan &

Ors. (supra) vide judgment dated 22.07.2020 whereby this Court

has upheld the Circular issued by the Government dated

05.04.2017, on careful reading of the said judgment, this Court

finds that the issue before this Court in that case was with regard

to considering the candidature of the candidates who completed

three years of regular service vis-a-vis the persons who were

working on adhoc temporary basis. This Court has upheld the

decision of the State whereby persons who were working on

regular basis, after regular selection, were only found eligible and

the Senior Demonstrators with regular service were allowed to

compete against the posts which were meant for PG Medicial

Degree Course. This Court has upheld the order of the

Government dated 31.03.2017 and had only made observation in

the last concluding para that if sufficient number of regularly

selected candidates were not available, then the authorities can

keep in mind the recommendations made by the NEET PG

Counselling Board highlighting non-availability of Senior

Demonstrators with three years of regular service.

35. Accordingly, this Court does not find any force in the present

writ petition and the same is hereby dismissed.

(ASHOK KUMAR GAUR),J

Solanki DS, PS 87/-

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