Dr. Vikrant Kumar vs State of Uttarakhand and Others

V.K. Bist, J.—Instant petition has been filed by the petitioner for declaring the action of respondent Nos. 1 & 2 illegal, irregular, arbitrary, ultra-vires and void ab initio in giving retrospective effect to the provision of 10% weightage in marks for each year of service rendered in remote/difficult areas as introduced by notification dated 15.02.2012, prior in time, when the said provision was not even in existence and for quashing all consequential orders and directions made by the respondent authorities by giving retrospective effect to notification dated 15.02.2012, as there is no such provision in said notification for giving retrospective effect to it from any prior date. Further prayer has been made for directing the respondent No. 1 to give admission to the petitioner against one of the two PC seats under the State quota for the regularly appointed Medical officers working in provincial Health and Medical Services on the basis of marks/score obtained by him in All India NEET-PG 2012-13, as is provided under the law. This petition was heard on 25.06.2013. On that day order was passed permitting the petitioner to serve respondent No. 3 DASTI. Further order was passed directing the parties to maintain status-quo.

Counter affidavit on behalf of private respondent filed in the Court today. Same is taken on record. The petitioner also filed rejoinder affidavit to the said counter affidavit.

On 15.02.2012, Medical Council of India issued notification. After clause-9 the following clause was added.

Provided that in determining the merit of candidates who are in service of Government/Public Authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent Authority from time to time.

After declaration of the result of NEET-PG, the State Government also issued Information Bulletin for Counselling for Uttarakhand state quota seats in MD/MS/MDS/PG Diploma Courses in Medical/Dental Colleges of Uttarakhand through NEET-PG-2013/NEET (MDS)-2013. (Academic Session 2013-14). The proviso added in Clause-9 Post Graduate of Medical Education Regulation, 2013 was included in this information bulletin. The respondents, while considering admission of the petitioner as well as respondent No. 3 granted weightage in marks from September, 2010 by itself, as provided in the Regulations. In NEET Examination, the petitioner secured 782.441 marks, whereas the respondent No. 3 obtained 647 marks, but after giving weightage, the respondent No. 3 obtained more marks than the petitioner i.e. 824.21 marks.

The only submission of learned counsel for the petitioner is that the benefit to the respondent No. 3 from the retrospective effect should have not been granted. He submitted that according to the new amendment effect of the same would be given from the date of the publication of the notification. In support of his submission, learned-counsel for the petitioner referred paragraph-9 of the judgment of Hon''ble Supreme Court in Panchi Devi Vs. State of Rajasthan and Others, in which the Hon''ble Supreme court has observed that the right or a liability which was created for the first time, cannot be given a retrospective effect. He also referred paragraph-9 of the judgment of Hon''ble Apex Court in Anil Kumar Goel Vs. Kishan Chand Kaura, in which the Hon''ble Apex Court provided that all laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies, that such retrospective operation is intended.

Learned counsel for the petitioner submitted that in the notification dated 15th February, 2012, it was nowhere mentioned that the said notification is being issued with retrospective effect.

Mr. Parikshit Saini, Advocate for respondent No. 4 also supported the contention of learned counsel for the petitioner and submitted that in the notification, itself, it is mentioned that the same shall come into force from the date of its publication in the Official Gazette i.e. from 27th February, 2013 and effect of the same can only be given after its publication.

Mr. Paresh Tripathi, learned Addl. C.S.C. submitted that he has received FAX message from the Director General, Medical Health, in which he has requested time upto 4th July, 2013 for filing counter affidavit Since, learned counsel for Medical Council of India informed that 4th July, 2013 is last date for admission, no further time is being granted to the State Counsel. Mr. Tripathi, by referring the proviso, submitted that in the proviso itself it is mentioned that weightage in the marks by the Government/Competent Authority is as 10%. Weightage for each year service in remote/difficult area. The proviso says that its benefit may be given who are in service. He submitted that the moment, the proviso came into existence, same came into force and the services rendered by any person will be counted for the benefit and same has been done in the present matter.

Mr. J.P. Joshi, learned Senior Advocate for the respondent No. 3 submitted that in the proviso, it is itself mentioned that benefit of the weightage will be given to those who are in service of the Government and has served in remote area or in difficult area. He submitted that this provision nowhere says that benefit of the weightage will not be given from the back date. He further submitted that, in fact, this is in reference to the original notification and this does not deprive of, who are already working and should be in continuation. In support of his submission, learned counsel for respondent No. 3 referred the judgment of Hon''ble Apex Court, reported in State of Uttarakhand (Previously State of Uttar Pradesh) Vs. Mohan Singh and Others, and submitted that since it has referred to the original notification, it does not debarred him.

I have considered the submissions of learned counsel for the parties and have also gone through the entire record.

It is settled law that every notification, Govt. Orders, any Statute issued by the Government has its prospective effect unless specific guidelines in that notification/statute are provided. In the present case, though the proviso simply says that the candidates who are in service, the Govt./Competent Authority may give weightage in the marks for each of service rendered by them in remote area/difficult area, but the clause 1(2) provides that regulations shall come into force on the date of their publication in the Official Gazette.

Learned counsel for the Medical Council of India also made statement before the Court that the Regulations are not retrospective in any manner.

Considering the submission of learned counsel for the parties, I direct the respondents to grant benefit of weightage in the marks to the candidates who are in service from the date of publication of notification i.e. February, 27, 2012 and accord admission to the candidates who secured more marks.

Since 4th July, 2013 is the last date for admission, as per the admission schedule, as informed, in such circumstances I direct the respondents to complete this process of admission on or before 4th July, 2013. I also find that there exists provision in the Information Bulletin itself, for obtaining bond for getting admission as per Govt. Order dated 25.05.2013 in respect of service in remote area of the State of Uttarakhand. Since there is acute shortage of doctors in the State of Uttarakhand, specially of specialists and the doctors are getting specialization training under the State quota, the State Government is requested to consider for increase the period for rendering service in remote areas from two years to seven years. The Govt. is also requested to consider obtaining bond from such doctors for serving the State at lest 10 years from the date they complete their PG Course.

This disposes of the writ petition.

Let a copy of this order be sent to the Principal Secretary, Medical and Health Govt. of Uttarakhand. Let certified copy of this order be supplied to the counsel for the parties, today itself, on payment of usual charges.