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Judgment
Heard Shri A. Modhuchandra, the learned counsel appearing for the petitioner; Shri A. Vashum, the learned Government Advocate appearing for the respondent Nos. 3 and 4; Shri A. Bimol, the learned Sr. Advocate assisted by Shri H. Prabirkumar, the learned counsels appearing for the JNIMS and Ms. Th. Babita, the learned counsel appearing for the respondent No. 6.
By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash the impugned order dated 18-04-2017 as well as the merit list in respect of the category of "JNIMS SPONSORED".
1. The facts of the case as narrated in the petition are that the petitioner is a Senior Resident Doctor in the Department of Medicine at Jawaharlal Nehru Institute of Medical Sciences (hereinafter referred to as "the JNIMS"), Imphal since 10-09-2013 and before the joining his service as the Senior Resident Doctor at the JNIMS, he was serving as the Medical Officer in the Assam Rifles and was posted in different places including the posting at Singhat, Churachandpur, Manipur from 08-08-2011 to 31-08-2013. On 04-04- 2017 the JNIMS issued a Circular dated 04-04-2017 inviting applications from amongst the eligible candidates for undergoing postgraduate courses in JNIMS for the Academic Session 2017-2018. As the petitioner being an in-service candidate and in order to get the benefits under the proviso to sub-clause IV of Regulation 9 of the Medical Council of India (hereinafter referred as "the MCI"), the petitioner approached the Director, Medical & Health Services, through proper channel, with an application dated 05-04-2017 for issuing a difficult area posting certificate which was turned down by him vide his letter dated 07-04-2017 addressed to the Director, JNIMS on the ground that the Directorate of Health Services, Government of Manipur has no authority to issue such a certificate in favour of the petitioner in view of the Office Memorandum dated 08-02-2013 as he was/ is never a member of the Manipur Health Services. After the receipt of the said letter dated 07-04-2017, he submitted two applications on 07-04-2017- one, to the Principal Secretary/ Commissioner (Health), Government of Manipur and two, to the Director, JNIMS with a prayer to consider and accept the "service certificates" issued by the competent authority of the Assam Rifles as well as the Deputy Commissioner, Imphal West. Even though the said letter dated 07-04-2017 of the Director of Health Services having been received, the Director, JNIMS, remained silent, thus robbing the petitioner of his right to avail the incentivized marks. 3.2. Thereafter, the petitioner came to know that in the merit list notified on 11-04-2017, his name figured at Sl. No. 43 as the entitled incentive of 20% for his service was not granted to him. Had the said incentive of 20% for his service been granted to him, the petitioner could have been placed at Sl. No.19 and consequently, he could have been given admission to postgraduate course in JNIMS. Being aggrieved by the said merit list, the petitioner''s father submitted an application on 12-04-2017 to the Hon''ble Chief Minister, Manipur / the Chairman of the JNIMS Society to review the merit list and redraw the same considering the certificates submitted by his son but to not effect and instead, an order dated 18-04-2017 was issued by the JNIMS showing the names of the candidates selected for admission to postgraduate course in JNIMS. Being aggrieved by the actions of the JNIMS, the instant writ petition has been filed by the petitioner on the ground that the selection process adopted by the Selection Committee or the authorities of the JNIMS is quite illegal, arbitrary and is an open case of violating the legal rights of the petitioner as provided in the proviso to sub-clause IV of Regulation 9 of the MCI.
In order to contest the writ petition, an affidavit-in-opposition on behalf of the State Government has been filed wherein it has been stated that the weightage of marks as incentive for admission to post graduate courses in different institutions is given only in respect of in-service candidates belonging to the Manipur Health Services. Since the petitioner had never served as a Medical Officer under the Manipur Health Services at any point of time, the authority to issue such certificate was debarred from issuing the same. The service rendered by the petitioner while in service under the Assam Rifles had nothing to do with the State Government and therefore, there was no question of discrimination. Therefore, the petitioner is not eligible for claiming the benefits of weightage of marks for having served in the remote and difficult areas as per the regulations of the MCI. An affidavit-in-opposition has been filed by the respondent No.6 and since the stand of the respondent No.6 is similar to that of the State Government, the details of the averments made therein are not repeated here for the sake of brevity.
The subject matter in issue relates to the interpretation of the proviso to sub-clause IV of Regulation 9 which is given as under -
" 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."
In the said proviso, it is provided that in determining the merit of candidates which are in service of Government or public authority, weightage of marks may be given by the Government / competent authority as incentive at the rate mentioned therein. It is not clear from this proviso as to what is the meaning of the expression "Government / public authority". The said expression "Government / public authority" is not qualified by the expression "State Government or the Central Government". The expression "State Government/ Competent Authority" is used only in the last sentence authorising them to define the remote and difficult areas. It is also not disclosed in the proviso as to whether the expressions "Public Authority" and "Competent Authority" are one and the same or different authorities. On perusal of the provisions of Regulation 9A which provides for common counselling, it is seen that in respect of 50% all India quota seats of the contributing States, the counselling shall be conducted by the Directorate General of Health Services and in respect of the postgraduate courses in a State/ UT including the Medical Institutions established by the Central Government, the counselling be done by the State Government. In a conjoint reading of the proviso to sub-clause IV of Regulation 9 and 9A of the Regulations, it appears that the expression "Government / Public Authority" may mean the State Government or the Central Government as the case may be. It may be noted that in tune with the provisions of Regulation 9, the State Government issued an Office Memorandum dated 08-02-2013 whereby the places of posting in the State of Manipur as remote and difficult areas for the purpose of consideration, have been defined for giving weightage of marks as an incentive to the Manipur Health Services. On perusal of this Office Memorandum, it is clear that so far as the quota for the State of Manipur is concerned, the weightage of marks as an incentive is intended to be given to the members of the Manipur Health Services.
In fact, the order dated 18-04-2017 issued by the JNIMS which is under challenge in this writ petition, has already been quashed by this court vide judgment and order dated 07-09-2017 in writ petition being WP(C) No.360 of 2017 and consequently, the JNIMS has been directed to redraw the select list. But since the issue involved herein has not been decided in the said writ petition, the instant writ petition is being considered for a limited purpose. The contention of Shri A. Modhuchandra, the leaned counsel appearing for the petitioner is that the petitioner is entitled to weightage of 20% of marks as incentive over his marks obtained in the NEET-PG, 2017 in view of the mandatory provisions of Regulation 9 for his two years service rendered in remote and difficult areas. Denial of such a weightage as incentive to the petitioner is nothing but violation of his legal right. It has further been contended that there shall be no discrimination between the members of the Manipur Health Services and the petitioner who has rendered service in remote and difficult area while in service under the Central Government, in so far as the benefit of weghtage to be given under the proviso to sub-clause IV of Regulation 9 is concerned. In order to substantiate his contention, he has placed reliance in State of UP & ors. Vs. Dinesh Singh Chauhan, (2016) 9 SCC 749 wherein two Government orders issued by the State of UP came to be challenged and the question was as to whether the in-service medical officers who have working experience (in areas other than remote and difficult areas) could also be treated as eligible for admission against the reserved 30% quota for in-service candidates in postgraduate degree courses. The Hon''ble High Court quashed the Government order dated 28-02-2014 holding that Regulation 9 is a complete code and the admission process must strictly be adhered to the norms stipulated therein. When the matter came up before the Hon''ble Supreme Court, it has been held that Regulation 9 and in particular, Regulation (2) does not envisage any reservation of seats for the postgraduate degree courses, unlike the express provision which is made in the same regulation to provide reservation of seats for in-service candidates in diploma courses and that it envisages that only the weightage be given in the manner provided therein. The reservation referred to in the opening part of Regulation 9 (IV) is, obviously, with reference to reservation as per the constitutional scheme (For SC, ST or OBC candidates) and not for the in-service candidates or medical officers in service. It has also been held that it is well established that the State has no authority to enact any law much less by executive instructions that may undermine the procedure for admission to postgraduate medical courses enunciated by the central legislation and regulations framed thereunder.
On the other hand, Shri A. Bimol, Senior Advocate appearing for the JNIMS has submitted that the proviso to sub-clause IV of Regulation 9 does not contemplate to deal with such situation and since there is no specific provision therein that the service rendered by a Medical Officer in a remote and difficult area while in service under the Central Government can be given weightage of marks as incentive for admission to postgraduate course against the State quota, the contention of the learned counsel appearing for the petitioner has no force and cannot be accepted at all. Supporting the argument of Shri A. Bimol, Senior Advocate, Shri A. Vashum, the learned Government Advocate has submitted that as regards the weightage of marks to be given as an incentive, the State Government has issued the Office Memorandum dated 08-02-2013 which remains unchallenged by the petitioner and therefore, he cannot claim any anything beyond what has been provided therein. In addition to what has been submitted hereinabove, Ms. Th. Babita, the learned counsel appearing for the respondent No.6 has submitted that the past service rendered by the petitioner cannot be considered for admission for the academic session 2017-2018. It has further been submitted by her that since the letter dated 07-04-2017 issued by the Director of Health Services, Manipur rejecting the prayer of the petitioner for issuing a remote and difficult area posting certificate in his favour, has not been challenged by him, the JNIMS authority cannot grant the benefit of weightage to him in the absence of such a certificate. The person who has been authorised to issue such a certificate, is the Director of Health Services, Manipur. The Union of India or for that matter, the MCI which is the competent authority to explain or clarify the proviso, has not been impleaded as party in the writ petition. These counsels have not cited decisions of the Hon''ble Supreme Court except the one in Union of India Vs. Dinesh Prasad, (2012) 12 SCC 63 which is not relevant for deciding the issue involved herein.
There can be no any dispute as regards the law laid down by the Hon''ble Supreme Court in the said Dinesh Singh Chauhan''s case (supra) but the Hon''ble Supreme Court has not dealt with the question, that arises in the present case for consideration by this court, as to whether the petitioner, having regard to the fact that he has served in the remote and difficult area while working as a Medical Officer under the Central Government, can be given the weightage of 20% as incentive for undergoing postgraduate course in JNIMS against the quota of the State Government. It is not in dispute that proviso to sub-clause IV of Regulation 9 provides that weightage in the marks may be given by the Government / Public Authority as an incentive at the rate mentioned therein. As has been observed hereinabove, the expression "Government/ Public Authority" may mean both the State Government and Central Government. It is also not in dispute that students for admission to postgraduate courses shall be selected strictly on the basis of their inter-se academic merit as determined by a centralised competitive test held at the national level. There ought to be two merit lists-one, an all India merit list and two, State-wise merit list. As regards the all India quota seats, the counselling shall be done by the Directorate General of Health Services, Government of India while that of the State quota by the State Government concerned. But it is nowhere specifically mentioned in the proviso to sub-clause-IV of Regulation 9 that a candidates who has served in remote and difficult area while in service under the central Government, can be considered for admission to postgraduate course against the State quota and in the absence of a clear provision, no presumption can be made which may have a far reaching consequence. Therefore, in order to decide the issue involved herein, it becomes necessary for this court to examine the other relevant circumstances. In this regard, it may be noted that the State Government has issued an Office Memorandum dated 08-02-2013 wherein it has been stated that the places of posting in the State of Manipur as remote and difficult areas have been defined for purpose of giving weightage of marks as an incentive to the officers of the Manipur Health Services. On perusal of this Office Memorandum, it is seen that the weightage of marks as incentive can be given only to the officers of the Manipur Health Services and moreover, the Circular issued on 04-04-2017 specifically states that a difficult area posting certificate issued by the State Health Director, Government of Manipur only shall be considered valid. This condition appears to have been made because the Director of Health Services, Government of Manipur will have his control & supervision over the doctors namely the officers of the Manipur Health Services working under the State Government. It further appears that the circular dated 04-04-2017 and the Office Memorandum dated 08-02-2013 have not been challenged by somebody including the petitioner and as long as the same are in operation, the State Government is bound to follow them. So far as the petitioner is concerned, it has been stated in his rejoinder that the Office Memorandum dated 08-02-2013 is discriminatory being violative of the proviso to sub-clause IV of Regulation 9 and deserves to be quashed and according to him, the only thing that the State Government has to do, it to see whether the candidate has served in the defined remote and difficult area or not. But the learned counsel appearing for the petitioner has not pointed out as to how the Office Memorandum dated 08-02-2013 is violative of the provisions of the proviso to sub-clause IV of the Regulation 9 nor has the foundation of questioning it been given. As has been stated herein above, the provisions of proviso to sub-clause IV of Regulation 9 are not unambiguous on the issue and moreover, there is no material on record to show as to how the Central Government proceeds and manages as regards the admission to postgraduate courses against the all India quota seats. Further, there is no material on record to show that the MCI has raised any objection to the Office Memorandum dated 08-02-2013 being issued by the State Government nor has any complaint been made to the MCI by any person aggrieved by the said office memorandum. On top of that and as has been submitted by the counsel appearing for the respondent No.6, the letter dated 07-04-2017 by which the petitioner''s prayer for grant of a difficult area certificate has been rejected, remains unchallenged by him and therefore, as long as the said letter is valid and in operation, nothing can be done by the JNIMS which has no authority to question it. Having heard the learned counsels appearing for the parties, this court is of the considered view that the instant writ petition is devoid of any merit and deserves dismissal.
For the reasons stated hereinabove, the writ petition fails and is, accordingly, dismissed with no order as to costs.