State Of Jammu & Kashmir & Ors vs Mohammad Obied Haqaq

Ali Mohammad Magrey J

This Letters Patent Appeal, filed by the State of J&K and its concerned functionaries, calls in question the judgment dated 24.05.2018 passed by the learned Writ Court in petitioner-respondent‟s writ petition,

OWP no.688/2018, directing the respondents-appellants to accord to the petitioner - a Doctor working on contractual basis under National Rural Health Mission (NRHM) - the benefit of weightage of marks for serving in inaccessible / difficult area, categorised as such by the Director, Health Services, Kashmir, for a period of two years - in terms of SRO 48 of 2018 dated 30.01.2018 providing for entitlement to weightage for serving in the difficult areas as defined under notification SRO 201 of 2006 dated 15.06.2006 for admission to MD/MS/Post Graduate Diploma Courses for the academic session 2018-2019.

Heard learned counsel for the parties and considered the matter.

The respondent, a Medical Officer in the State Health Department, qualified the National Eligibility-cum-Entrance Test held by the National Board of Examination for admission to MD/MS/Post Graduate Diploma Courses, Academic Session 2018-19, securing 410 out of 1200 marks. It appears that after declaration of the aforesaid result by the National Board of Examination, the J&K Board of Professional Entrance Examination (BOPEE) advised the candidates to register themselves online for updation of records for preparation of the State Merit List. Subsequently, the BOPEE by notification no.015-BOPEE of 2018 dated 13.03.2018 issued the list of, inter alia, MD/MS/PG Diploma & MDS candidates who had been awarded difficult area marks in terms of SRO 48 of 2018 dated 30.01.2018 on the basis of certificates produced by them, forming annexure II to the aforesaid notification. The petitioner‟s name did not figure in the aforesaid list. Feeling aggrieved of his non-inclusion in the said list, he approached the Writ Court in writ petition, OWP no.688/2018, fundamentally, seeking the relief of a direction to the Director, Health Services, Kashmir, Srinagar, to issue a certificate in his favour certifying that he had served in difficult / inaccessible / Rural area, viz. Primary Health Centre, Sangarwani, Medical Block Rajpora, District Pulwama, for over two years from 28.06.2014 to 31.08.2018, with a further direction to BOPEE to grant / admit him to the benefit of weightage of incentive at the rate of 10% of the marks obtained in the National Eligibility-cum-Entrance Test for each such year of service in difficult area and, thereupon, to re-evaluate his merit position and so on.

It appears that after his appointment as Medical Officer in the Health Department, vide Government order no.132-HME of 2014 dated 04.03.2014, the respondent was posted as such at PHC Sangarwani from 28.06.2014 to 31.08.2016 and, thereafter, at PHC Wusan, Block Kangan from 01.09.2016 onwards. He was issued a Rural Service Certificate by the Director, Health Services, Kashmir, under endorsement no.ESt-3/1-133/5687 dated 09.02.2017 placed as annexure E(Coll.) with the petition.

It is relevant to mention here that the Government of Jammu and Kashmir, by SRO 48 dated 30.01.2018, while amending the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Post Graduation Degree and Diploma Courses) Procedure Order, 1995, substituted Clause 4-A thereof, prescribing that candidates shall be entitled to weightage for serving in the difficult areas as defined under notification SRO 201 of 2006 dated 15.06.2006 to the extent of additional 10% for each year of completed service in such areas subject to a maximum of 30% of the marks obtained in the written test; provided that each completed year of service shall mean actual service days even on ad hoc / contractual or as NRHM Doctor in these areas to be certified by the concerned Director, Health Services.

On 28.02.2018, the respondent purportedly made a representation to the Director, Health Services, bringing to his notice that since PHC, Sangarwani, had been classified as a Category A (inaccessible area) vide annexure N to the Operational Guidelines (2012-2013) issued by the National Rural Health Mission (NRHM), State Health Society, J&K, and that a candidate was entitled to extra incentive marks for serving in the remote and difficult areas of the State for admission to the Post Graduate courses, he be issued a certificate of having served in Category A (Inaccessible Area) for over two years so as to enable him to avail of the benefit of the incentive in question. As mentioned above, the BOPEE issued the notification dated 13.03.2018 notifying the list of MD/MS/PG Diploma & MDS candidates who had been awarded the weightage for having served in difficult areas in terms of SRO 48 of 2018 dated 30.01.2018. The BOPEE vide the said notification also notified that any candidate desirous of making representation against the above or who has not been included in the list, but has uploaded/provided valid certificate issued by the competent authority may do so upto 15.03.2018 by submitting the same online alongwith the documentary evidence in support of his claim. The petitioner, accordingly, made a representation to the BOPEE claiming benefit of weightage on the basis of the aforesaid certificate issued in his favour by the Director, Health Services, Kashmir, certifying that he had served as Medical Officer at PHC, Sangerwani, for a period of over two years. Subsequent thereto, he filed the writ petition.

Referring to proviso to Regulation 9(4) of Medical Council of India, Post Graduate Medical Education, Regulations 2000 as amended vide notification dated 15.02.2012 (hereinafter, MCI Regulations), his case before the Writ Court was that, with a view to effectuating the mandate of the aforesaid proviso to Regulation 9(4), the State Government has issued statutory notification SRO 48 of 2018 dated 30.01.2018 providing for weightage for serving in difficult areas as defined under notification SRO 201 of 2006 dated 15.06.2006 to the extent of additional 10% for each year of completed service in such areas subject to a maximum of 30% of the marks obtained in the written test. It was further pleaded by him that vide Regulation (Article) 41-A of the Jammu and Kashmir Civil Service Regulations, 1956 (J&K CSRs) the State Government had specified the parameters to be factored into for determining and declaring an area to be remote or difficult within the meaning and contemplation of proviso to Regulation 9(4) of the MCI Regulations, and that, in this regard, the State, acting through the Director, Health Services, Kashmir, had issued Operational Guidelines approving, inter alia, special incentives to doctors with a view to ensuring their availability in remote areas of the State prescribing incentive of Rs.20,000/-, Rs.15,000/- and Rs.10,000/- for Allopathic/ISM doctors hired under NRHM and serving in Category „A‟ (inaccessible areas), category „B‟ (very difficult areas) and category „C‟ (difficult areas), respectively, enclosing a list of health institutions falling in such areas as annexure „N‟ thereto. The case of the petitioner was that in the District of Shopian, PHC, Sangarwani, where he had served for two years, was shown to be falling in Category „A‟, i. e., inaccessible area. Basing his claim on such monetary incentive accorded to the Doctors working on contract basis under the National Rural Health Mission Scheme, the petitioner claimed the reliefs prayed for in the writ petition.

The stand of the appellants before the Writ Court, as referred to in para 5 of the judgment, was that, as per the records, the respondent had not served in any of the difficult areas of Kashmir Province as mentioned in SRO 201 of 2006, and that the contention of the respondent founded on the document, Annexure N, was misconceived, as the said list was issued by the Director only to provide incentives to the doctors serving in rural areas under NHRM.

The learned Writ Court found favour with the case so put forth before it on behalf of the respondent-petitioner and, accordingly, in the impugned judgment, quoting the relevant extract of the guidelines issued by the Director, Health Services, Kashmir, qua the doctors working under NRHS observed and held as under:

"8. The aforesaid extract has to be read with Annexure N, which has been marked as Annexure C to the petition. In the aforesaid Annexure, at Serial No.12, Public Health Centre, Sangerwani, District Shopian has been defined to be an inaccessible area. The petitioner has remained posted there for two years, and, therefore, he is entitled to weightage of marks by taking into account his service in a difficult / inaccessible area for two years. So far as the contention that the case of the petitioner does not fall in SRO 201 of 2006 is concerned, by SRO 201 of 2006, the Article 41-BBBBB of J&K Civil Services Regulations has been inserted, which provides that compensatory allowance / border allowance shall be allowed to the Government servants at the rates given in Annexure B to this Chapter. In other words, SRO 201 of 2006 does not define difficult or remote areas and defines the areas only for the purpose of compensatory allowance / border allowance. Therefore, the contention of the respondents that since PHC Sangerwani, District Shopian is not included in the SRO 201 and, therefore, he is not entitled to weightage of marks on the basis of his two years‟ service in difficult and remote areas, cannot be accepted.

In view of the preceding analysis, the writ petition is disposed of with the direction to the respondents to accord the petitioner benefit of weightage of marks for serving in inaccessible / difficult area for a period of two years and, thereafter, to take a decision with regard to his eligibility for admission to the course in question. Accordingly, the petition is disposed of alongwith connected MP."

It is against the aforesaid judgment and order of the learned Writ Court that this LPA has been filed by the State and its concerned functionaries.

Having considered the matter, it is seen that the learned Writ Court has recorded a finding that SRO 201 of 2006 does not define difficult and remote areas, and that it defines the areas only for the purpose of compensatory allowance / border allowance. On the basis of such finding, the learned Writ Court has proceeded further to reject the submission of the appellants that since PHC, Sangerwani, District Shopian, was not included in the SRO 201, the petitioner was not entitled to weightage of marks on the basis of his two years‟ service at such health centre. In other words, the learned Writ Court has taken and held the areas categorized by the Director, Health Services, Kashmir, as inaccessible, very difficult and difficult areas for purposes of entitlement to monetary incentive under NRHM Scheme as being the areas defined and identified by the State Government / Competent Authority for purpose of providing the prescribed weightage of marks as an incentive in terms of the mandate of proviso to Regulation 9(4) of the MCI Regulations. Such a view, apart from being against facts and law concerning the subject, is also wholly contrary to the judgment of the Division Bench of the Court in LPASW no.85/2017 c/w LPASW no.91/2017, titled State of J&K & ors. v. Shahnaz Ahmad Chowdhary & ors., decided on 19.05.2017. We are of the view that the point in issue is fully covered by the said judgment. Therefore, before adverting to the facts and law concerning the subject, we deem it appropriate to refer to the aforesaid judgment of the Court.

Before doing so, it is worthy mentioning here that the learned Single Judge who delivered the judgment impugned herein was one of the members of the Division Bench in the aforesaid case, State of J&K & ors. v. Shahnaz Ahmad Chowdhary & ors., and, as a matter of fact, the Division Bench judgment was also written by his lordship. The Division Bench judgment is also prior in time to the one impugned herein. Obviously, it appears that the Division Bench judgment was not brought to the notice of the learned Judge, while hearing the writ petition in the instant case. The impugned judgment is thus based on a finding per incurium.

In State of J&K & ors. v. Shahnaz Ahmad Chowdhary & ors. (supra), the writ petitioners (respondents in the LPA) had been employed under National Rural Health Mission on contract basis and posted in areas defined by the State Government as difficult rural areas. They participated in the National Eligibility-cum-Entrance Test held by the National Board of Examinations in December, 2016. Their case before the Writ Court was that in terms of proviso to Regulation 9(4) of the MCI Regulations, the State was obliged to provide weightage @ 10% of the marks obtained for each year of service in remote and difficult areas upto a maxim of 30%, but the Government, in terms of SRO 401 of 2009 dated 29.12.2009, had instead provided weightage of only 2 marks for each completed year of service subject to a maximum of 10 marks. The writ petitioners therein sought quashing of the SRO 401 of 2009 with a direction to the State respondents to grant them the weightage in marks as per proviso to Regulation 9(4) of the MCI Regulations. The Writ Court by its judgment dated 26.04.2017 allowed the writ petition and directed the State-respondents to award the weightage of marks in terms of Regulation 9 of the MCI Regulations etc. The State-respondents in the writ petition challenged the said judgment in LPA no.85/2017. In appeal Mr. Jehangir Iqbal Ganai, learned Advocate General, took the stand that though Regulations framed by the MCI were binding on the State Government, yet, in terms thereof, it had not defined the remote and difficult areas. It was further pleaded that the petitioners in that writ petition were not employees of a public authority, and that they were, therefore, not entitled to the claimed weightage under Regulation 9 of the MCI Rules. As against this, the argument on behalf of the writ-petitioners (respondents in the appeal) before the Division Bench was that the National Rural Health Mission was a public authority within the meaning of Regulation 9 of the MCI Rules, and that in SRO 401, by reference to SRO 201, the difficult areas stood identified. It was further argued on their behalf that National Rural Health Mission was the competent authority to define remote and rural areas, and that the said authority had also identified difficult, very difficult and inaccessible areas. Further, it was averred that the Director, Health Services had issued certificates to them that they had served in difficult areas.

On consideration of the matter and adverting to Regulation 9 of the MCI Regulations; Regulation (Article) 41-A(i) read with Regulation (Article) 41AAA & 41-BBB of the J&K CSRs; SRO 201 of 2006 dated 15.06.2006; and the judgment of the Supreme Court in State of U. P. & others v. Dr. Dinesh Singh Chauhan, AIR 2016 SC 3841, the Division Bench was of the view that three issues were involved in that case, namely:

i) Whether Regulation 9 of the Regulations would apply in the absence of definition by the State Government / Competent Authority with regard to difficult and/or remote areas?

ii) Whether National Rural Health Mission was a public authority as defined under proviso to Regulation 9 of the Regulations?

iii) Whether respondents (therein) were entitled to benefit of Regulation 9 of the Regulations?

It may be reiterated that the point in issue in the present case arises in context of the finding of the learned Single Judge that SRO 201 of 2006 does not define difficult and remote areas, and that the areas categorized by the Director, Health Services, Kashmir, as inaccessible, very difficult and difficult areas for purposes of entitlement to monetary incentive under NRHM Scheme are the areas defined and identified by the State Government / Competent Authority for purpose of providing the prescribed weightage of marks as an incentive in terms of the mandate of Regulation 9 of the MIC Regulations. In that context, the second and the third issue involved in the aforesaid DB matter are not relevant in the present case. So far as the first issue involved therein, as quoted above, it has relevance to the points in issue in the present case.

In that regard, the Division Bench in para 14 of the judgment, after pin pointing the issues involved, proceeded to record the following finding:

"We shall now proceed to deal with the issues at seriatim. It is an admitted fact that the State Government has not defined difficult and remote areas. However, from close scrutiny of the proviso to Regulation 9 of the Regulations it is axiomatic that though the power has been given to the State Government / Competent Authority to define remote and difficult areas yet there is no requirement to issue a notification under the proviso to Regulation 9 of the Regulations. In the considered opinion of this Court, the expression „defined‟ used in the Regulations with regard to difficult and remote areas has been made only with the purpose of bringing to the notice of the public that Doctors serving in remote and difficult areas shall be entitled to benefit of additional marks by way of incentive as provided in Regulation 9 of the Regulations. Admittedly the State Government even prior to amendment of Regulation 9 of the Regulations in the year 2012 by virtue of enactment of SRO 401 dated 29.12.2009 has granted the benefit to the Medical Officers who have served in difficult areas. In other words, the State Government has identified the difficult and remote areas, which is also discernible from SRO 201 of 2006. The difficult areas have been identified by the State Government on the strength of the guidelines provided under Regulation 41-A(i) of the Jammu and Kashmir Civil Service Regulations, 1956. The expression „remote areas‟ used in the Regulations has to be understood with purposive sense to mean those areas which are out of way, far of, secluded and are difficult to access due to which Doctors are reluctant and willing (sic) to serve in those areas. It is pertinent to note that proviso to Regulation 9 does not speak of issuance of notification with regard to remote and difficult areas but the same simply state that the remote and difficult areas shall be defined by the State Government / Competent Authority from time to time. In the peculiar fact situation of the case, at least so far as examination of this year is concerned, we are inclined to hold that since the State Government had already identified the remote areas and the Regulation 9 of the Regulations being mandatory and binding on the State Government, the Medical Officers, who have rendered their services in remote areas are entitled to benefit of Regulation 9 of the Regulations, especially in view of public notice issued by the Jammu and Kashmir Board of Professional Entrance Examination dated 24.01.2017, the relevant extract of which reads as under:

„...‟

Besides that, the State Health Society of National Rural Health Mission has identified remote, inaccessible, very difficult and difficult areas in the State of Jammu and Kashmir with a view to ensure availability of Doctors in the aforesaid areas, which have been mentioned in the operation guidelines (sic) for the year 2013-2014 issued by the Director Health Services, Kashmir. The aforesaid document has been produced on behalf of the respondents and the same is taken on record as its authenticity beyond any pale of doubt (sic). In the result we hold that Regulation 9 of the Regulations would apply in respect of the National Eligibility-cum-Entrance Test held this year bearing in mind the mandate of Regulation 9 of the Regulations and in view of identification of remote and difficult areas by the State Government which is not required to be defined necessarily under Regulation 9 of the Regulations, which even otherwise would be in consonance with the object and spirit of Regulation 9 of the Regulations."

(Underlining supplied)

Then in para 17 of the judgment, the Division Bench observed and held as under:

"17) However, we make it clear that in case the State Government feels, that any clarification with regard to difficult and remote areas is required, the State Government shall be free to approach Medical Council of India and shall positively identify the difficult and remote areas well before the next National Eligibility-cum-Entrance Test. For this Examination, we direct the appellant herein to accord the benefit of regulation 9 of the Regulations as the difficult and remote areas have already been identified by the State Government, which is evident from Regulation 41-A(i) of the Jammu and Kashmir Civil Service Regulation, 1956. Therefore, we agree with the conclusion recorded by the learned Single Judge, but for different reasons which we have recorded supra."

(Underlining supplied)

Again, in the concluding para 18 of the judgment, the Division Bench, directed as under:

"18) ...In view of preceding analysis, we direct the appellants herein to grant the benefit of Regulation 9 of the Regulations to the Medical Officers who have served in difficult areas as defined in SRO 201 of 2006 and to redraw the merit list....".

It is thus seen that the Division Bench has in unambiguous terms held that in terms of the mandate of proviso to Regulation 9(4) of the MCI Rules, the State Government had identified and defined difficult areas in terms of SRO 201 of 2006 which was evident from Regulation (Article) 41-A(i) of the J&K CSRs. Accordingly, the appellants in the appeal were directed to grant such benefit to the Medical Officers / respondents therein who had worked under the National Rural Health Mission Scheme in such difficult areas as defined in SRO 201 of 2006. It is note worthy that though reference was made by the respondents‟ counsel to the categorisation of areas made by the Director, Health Services, Kashmir, as inaccessible, very difficult and difficult areas and the Division Bench did make note of such submission, but such categorization was not relied upon or taken by the Division Bench as being the areas defined as remote and difficult in terms of the mandate of Regulation 9 of the MCI Regulations for making the aforesaid direction to the respondents.

It is further seen that against the aforesaid judgment and order dated 19.05.2017 of the Division Bench the BOPEE filed petitions for Special Leave to Appeal (C) No(s). 15859-15860/2017 before the Supreme Court, but the same were dismissed by order dated 29.05.2017.

In light of the above, we are of the considered view that the point in issue sought to be raked over stands concluded by the aforesaid Division Bench judgment, holding that the State Government had identified and defined the remote/difficult areas for purposes of accord of weightage in terms of the mandate of proviso to Regulation 9(4) of the MCI Regulations vide SRO 201 of 2006 dated 15.06.2006 read with Regulation 41-A(i) of the J&K CSRs. In fact, the Government in terms of communication no.GAD/Mtg/RB-IV/10/2017-I dated 05.04.2019 has written to the Secretary to BOPEE, in response to their communication dated 20.02.2019 on the subject, that the list of villages as notified in terms of SRO 201 dated 15.06.2006 shall be reckoned for the purpose of awarding incentive marks to the doctors who have rendered services in difficult areas, and that no addition or deletion of villages has been made in the list of villages which figure in SRO 201 of 2006 dated 15.06.2006.

Now, it be seen that Regulation 41-A(1) of the J&K CSRs actually deals with local allowance. It reads as under:

"(1) A local allowance may be granted by the Government at such rates and at such places as qualify for it. The factors determining the eligibility for the allowance shall by and large, be the remoteness of the place, its inaccessibility, severe inclement weather conditions, its remaining cut off from the rest of the State for a period of time, its expensiveness, lack and gross adequacy of medical, educational, residential and other basic amenities of life, its health hazards and similar other rigorous conditions of living".

It is seen that in order to bring the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Post Graduation Degree and Diploma Courses) Procedure Order, 1995 in accord with the mandate of proviso to Regulation 9(4) of the MCI Regulations, the State Government further amended the said Procedure Order in terms of SRO 48, whereby Clause 4-A thereof was substituted by the following:

"4-A Weightage of serving in difficult areas:- The candidates shall be entitled to weightage for serving in the difficult areas as defined under notification SRO 201 of 2006 dated 15.06.2006 to the extent of additional 10% for each year of completed service in such areas subject to a maximum of 30% of the marks obtained in the written test;

Provided that each completed year of service shall mean actual service days even on ad hoc / contractual basis or as NRHM Doctor in these areas to be certified by the concerned Director Health Services and shall exclude the days spent on any training programme or absence of any kind except such absence on casual leave."

SRO 201, referred to in the aforesaid Procedure Order, is extracted hereunder:

"SRO 201. - In exercise of the powers conferred by proviso to Section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to direct that the following amendment shall be made in Jammu and Kashmir Civil Services Regulations, Vol-1:-

In the said Regulations:

The following shall be inserted as Art 41-BBBBB of J&K CSRs Vol-I.

"Art-41-BBBBB: The Compensatory Allowance / Border Allowance shall be allowed to Govt. servants at the rates given in Annexure B to this chapter (Chapter III). This shall be deemed to have come into effect from 01.04.2006.

All other conditions for the grant of this allowance shall be the same as laid down in Art. 41-A, 41-AAA and Art. 41-BB of these regulations‟.

The following shall be inserted as Annexure „B‟ to Chapter III.

Annexure-B to Chapter III (Refer Article 41-BBBBB (Rates of Compensatory Allowance/Border Allowance) ...

...

...

By order of the Governor."

Annexure-B to Chapter III, as inserted by the aforesaid amendment, in its first column mentions the names of the places in the respective Districts, obviously, identified by the State Government on the basis of the definition of such areas given in Art. 41 of the J&K CSRs. The aforesaid Annexure-B to Chapter III is thus a part of SRO 201 of 2006 which also makes reference to Articles 41-A, 41-AAA and 41-BB of the Regulations. The matter thus stands concluded by the judgment of the Division Bench in State of J&K & ors. v. Shahnaz Ahmad Chowdhary & ors. (supra).

We may add here that the contention of the respondent herein has been that the State Government vide Regulation 41-A of the J&K CSRs specified the parameters to be factored into for determining and declaring an area to be remote or difficult within the meaning and contemplation of proviso to Regulation 9(4) of the MCI Regulations and that the State Government through the Director, Health Services, Kashmir, issued Operational Guidelines in effectuation thereof. It is seen that the document produced in this behalf is photocopy of pages 28, 29 of the Scheme of the National Rural Health Mission as formulized vis-à-vis the State of Jammu and Kashmir and of Annexure N thereto comprising pages 93, 94 and 95 issued under the signatures of Director, Health Services, Kashmir. This document appears to delineate the mission mode of the action plan under the Scheme to provide accessible, affordable and quality health care to the rural population, especially the vulnerable groups. To achieve the objectives under the Scheme, one of the features of the Scheme is that it has provided special incentives to doctors with a view to ensuring their availability in remote areas of the State. In that connection, special incentives of Rs.20,000/-, Rs.15,000/-and Rs.10,000/- have been provided for Allopathic/ISM doctors hired under the Scheme and serving in Category „A‟ (inaccessible areas), category „B‟ (very difficult areas) and category „C‟ (difficult areas), respectively. There is nothing like operational guidelines contained in the document, as pleaded in the petition and carried in para 7 of the judgment by the learned Writ Court. These areas have been categorised as such by the Director, Health Services, Kashmir, in terms of Annexure N appended thereto for purpose of grant of the aforesaid incentives and such categorization has nothing to do with the defining of remote and difficult areas by the State Government as envisaged by proviso to Regulation 9(4) of the MCI Regulations. It also needs to be borne in mind that SRO 48 providing for weightage of the requisite marks specifically mentions "difficult areas as defined under notification SRO 201 of 2006 dated 15.06.2006". The matter ends there without leaving any scope for a confusion or connotation contrary to the express wording of the SRO and the statutory provision. It is also worthy of notice that the Director has not issued any such certificate in favour of the respondent and it is not within the competence of the Court to assume to itself the power exercisable by the Director, Health Services, under the newly added clause 4-A to the Selection Procedure, 1995 or to direct alteration of the statutory rule SRO 201 of 2006, defining the difficult areas, which has been issued by the Governor of the State in exercise of constitutional powers vested in him.

It may be observed here that the proviso to Regulation 9(4) of the MCI Regulations in clear and unambiguous terms provides that the remote and difficult areas shall be as defined by State Government/Competent authority from time to time. In terms of Section 43 of the Constitution of Jammu and Kashmir concerning conduct of Government business, the Governor of the State has made the Jammu and Kashmir Business Rules. Rule 4(1) under Part-I, „allocation and disposal of business‟ of the said Rules prescribes that the Business of the Government shall be transacted in the departments specified in the First Schedule, and shall be classified and distributed between those departments as laid down therein. In terms of Serial no.1 of the Schedule, the subject of trainings has been assigned to the Department of Administrative Reforms, Inspections, Trainings and Grievances Department. In fact, the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Post-graduate Degree and Diploma Courses) Procedure Order, 1995 and the notification SRO 48 dated 30.01.2018 have been issued by the same Department. And Rule 6 of these Rules says that each department of the Secretariat shall consist of the Secretary to the Government, who shall be the official head of that department, and of such other officers and servants subordinate to him as the State Government may determine. Then Rules 11 and 12 of the aforesaid Rules provide that all orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor or of the Government of Jammu and Kashmir, and every order or instrument of the Government of the State shall be signed either by the Chief Secretary, the Additional Chief Secretary, a Secretary, an Additional Secretary, a Joint Secretary, an Additional Joint Secretary, a Deputy Secretary or an Under Secretary to the Government or such other officer as may be specially empowered by the Government in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument. There is nothing brought on record to show that the State Government has delegated any power concerning the mandate of proviso to Regulation 9(4) of the MCI Regulations on the Director, Health Services, Kashmir, except the power to certify that a Doctor has worked in difficult area(s) as defined under notification SRO 201 of 2006 dated 15.06.2006.

In light of the above, we are of the view that the learned Writ Court has erred in holding that SRO 201 of 2006 does not define difficult or remote areas. This SRO has to be read conjointly with the relevant provisions of the J&K CSRs mentioned therein which identify and define the difficult areas. It is to be borne in mind that the word "defined" used in proviso to Regulation 9(4) of the MCI Regulations, apart from connoting the meaning of a word or a phrase, means to having a definite outline or specification; precisely marked or stated. It is seen that SRO 201 of 2006 read with the provisions of J&K CSRs mentioned therein clearly specify, mark out and state limits of the difficult areas. Further, we hold that the learned Single Judge has also erred in relying on the categorization of certain areas made by the Director, Health Services, Kashmir, entitling the doctors posted in such areas to monetary incentives mentioned therein, for purposes of the benefit of the weightage envisaged and mandated by proviso to Regulation 9(4) of the MCI Regulations read with Clause 4-A of the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Post Graduation Degree and Diploma Courses) Procedure Order, 1995. In fact, it amounts to reading something or adding something in SRO 201 of 2006 and the relevant provisions of the J&K CSRs mentioned therein which otherwise does not exist therein.

It may be observed here that Mr. R. A. Jan, learned senior counsel appearing for the respondent wanted this Court to gather the legislative intention behind the proviso to Regulation 9(4) of the MCI Regulations and SRO 48 of 2018 with a view to expanding the scope of SRO 201 and the relevant provisions of J&K CSRs mentioned therein to the areas categorized as inaccessible, very difficult and difficult areas by the Director, Health Services, Kashmir, for purposes of entitlement of incentive mentioned therein. He further referred to the rule that general rules must yield to the special rules on a subject. In this regard, he placed reliance on the judgments of the Supreme Court in ASHA v. Pt. B. D. Sharma University of Health Sciences, (2012) 7 SCC 389; and CTO v Binani Cements Ltd., (2014) 8 SCC 319. We are of the view that such questions do not arise in the instant case; therefore, the citations referred are not attracted to the facts of the case.

Accordingly, we are of the considered opinion that the impugned judgment cannot withstand the test of law and it warrants interference by us in this appeal.

Consequently, while allowing this appeal, the impugned judgment dated 24.05.2018 passed by the learned Writ Court in petitioner- respondent‟s writ petition, OWP no.688/2018, is set aside and the writ petition of the petitioner-respondent is dismissed as being without any merit.

No order, however, as to costs.