Deepak Gupta ORDER
1. Heard Ms. Indu Malhotra, learned senior Counsel appearing on behalf of the Petitioner, Dr. Monika Gusain, learned Counsel appearing on behalf of the Respondent-State and Mr. Gaurav Sharma, learned Counsel appearing on behalf of the Medical Council of India.
2. By consent of learned Counsel for the parties, we finally dispose of the writ petition filed Under Article 32 of the Constitution of India.
3. The Petitioners in the instant writ petition have made the following prayers:
a. Issue an appropriate writ, order or direction in the nature of Certiorari quashing the counselling process for MD/MS/PG Diploma held by the Registrar, Pt. B.D. Sharma, University of Health Science, Rohtak on 30.5.17 and 31.5.17 as unconstitutional being ultra vires Articles 14 of the Constitution of India.
b. Issue an appropriate writ, order or direction directing the Respondent State Authorities to issue a notification notifying the remote and/or difficult areas in terms of Post Graduate Medical Education Regulations, 2000 framed by the Medical Council of India and grant applicable weightage in marks while considering the candidature of the Petitioners for admission for MD/MS/PG Diploma in the State of Haryana.
c. Issue Rule nisi in terms of the prayers above.
d. Pass such other and further orders as this Court may deem fit and proper in the facts and circumstances of this case.
4. The Petitioners before us are in-service doctors who have applied for admission in Post Graduate Degree and Diploma Courses. The Petitioners claimed that having rendered service in remote and/or difficult areas they are entitled for the weightage as admissible Under Regulation 9 of the Post Graduate Medical Education Regulations, 2000 (hereinafter referred to as 'the 2000 Regulation'). It is submitted that earlier a list for remote and difficult areas was issued by the State of Haryana on 05.05.2017, which was challenged before the High Court by filing a writ petition. The writ petition was allowed by the Punjab and Haryana High Court against which order the State came in the SLP, which after granting leave, was decided by this Court on 25.05.2017. This Court affirmed the order of the High Court. However, in paragraph 17 of the aforesaid order, the following observations were made:
17. In the peculiar facts and circumstances of the case, the State of Haryana, if it wishes to give weightage for admission in post graduate courses under the proviso to Regulation 9(IV), it must come out with a fresh notification identifying remote and/or difficult areas as discussed in the present order, within one week from today and to facilitate the same, the last date for admission is extended to 10th of June, 2017.
5. Subsequent to the aforesaid order dated 25.05.2017, the Petitioners' grievance is that no list for remote and difficult areas was drawn by the State and hurriedly a counselling was conducted information of which was only given to them by SMS on 30.05.2017, in the night. Learned Counsel for the Petitioners submits that the first counselling was completed on 31.05.2017, whereas second counselling for admissions in Post Graduate Courses was conducted on 06.06.2017 and 07.06.2017. It is submitted that Regulation 9(IV) of the 2000 Regulation envisages a weightage to those in-service doctors who have rendered their services in difficult and/or remote areas, and the Petitioners who have served in difficult and/or remote areas are being deprived of their statutory weightage due to inaction on the part of the State. It is submitted that there was no reason after the order of this Court for not issuing a fresh list of difficult and/or remote areas. The State chooses not to issue a list and proceeded to complete the admission on Post Graduate Courses without giving weightage to any candidate of difficult and/or remote areas. It is further submitted that insofar as seats in Post Graduate Diploma Courses are concerned, it was the mandatory requirement of filling of the 50% of such seats by giving weightage to the in-service doctors who have completed three years in difficult and/or remote areas.
6. Learned Counsel for the State of Haryana submits that after the judgment of this Court dated 25.05.2017, the time was too short to collect the necessary data and issue a list. Hence, the State decided not to give weightage for the year in question Under Regulation 9(IV), and the admissions have been conducted on the basis of merit in the Degree and Diploma Courses.
7. It is further submitted that insofar as the diploma seats are concerned, the mop-up counselling is scheduled to be held on 09.06.2017.
8. Mr. Gaurav Sharma, learned Counsel representing the Medical Council of India submits that this Court has already held in State of Punjab and Anr. v. Rajesh Kumar and Ors. Etc. Etc. (Civil Appeal Nos. 8171-8173 of 2017 and connected matters), decided on 25.05.2017, that the provision of giving weightage Under Regulation 9(IV) is an enabling provision and it is for the State to take a decision to give weightage or not, and in the present case, the State of Haryana has proceeded to complete the admission in Post Graduate Diploma Courses on the basis of merit and no exception can be taken to the same. It is further submitted by Mr. Gaurav Sharma that in view of the fact that there is no list available of difficult and remote areas, it is not possible to give weightage even for diploma seats and admission to Diploma PG Courses be directed to be conducted on the basis of inter se merit of in service Doctors.
9. Learned Counsel for the State submits that prior to list dated 05.05.2017, there was a list only for transfer in the rural areas and that cannot be utilised for the purpose of giving weightage, as contemplated by Regulation 9(VII).
10. We have considered the submissions of learned Counsel for the parties and perused the record, Regulations 9(IV) and 9(VII) are to the following effect:
IV The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to Post-graduate courses from the said merit list only: 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.
VII 50% of THE SEATS IN Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas as defined by State Government/Competent authority from time to time.
11. From paragraph 17 of the judgment dated 25.05.2017, as extracted hereinabove, it is clear that the State must issue a notification notifying remote and/or difficult area if it intends to give weightage to Post Graduate Courses. The fact remains that no fresh notification has been issued till date. Thus, there is no list available for the State which can be utilised for giving weightage in Post Graduate Degree and Diploma Courses.
12. Although, learned Counsel for the Petitioners has assailed the counselling conducted on 30.05.2017 and 31.05.2017, but in view of the fact that stand of the State is that the counselling for the Post Graduate Degree Courses has been held on the basis of merit as disclosed in the NEET, we are of the view that on the said ground, we need not interfere with the admission of Post Graduate Degree Courses in the present case.
13. Now, coming to the 50% of seats in the Post Graduate Diploma Courses, Regulation 9(VII) mandates the State to reserve 50% of seats in the Post Graduate Diploma Courses for medical officers in the Government service who have served for at least three years in remote and/or difficult areas. Learned Counsel for the Petitioners submits that by just not acting, the State cannot be allowed to violate the mandatory provisions of Regulation 9(VII), and 50% seats in Post Graduate Diploma Courses have to be offered to in-service doctors who have completed three years. The object and purpose of giving 50% seats in Post Graduate Diploma Courses is to give incentive and encouragement to those in-service Doctors who have rendered their service in the remote and/or difficult areas. The fact further remains that as on date, there is no list of difficult and/or remote areas which can be utilised for giving weightage.
14. In the peculiar facts and circumstances of the present case, we are of the view that the submission made by Mr. Gaurav Sharma that the admission to Post Graduate Diploma Courses, on 50% posts, should be made on the merit of in-service doctors who have completed three years service needs to be accepted. We further clarify that only those candidates, Under Regulation 9(VII), for against 50% seats, shall be considered who have given their application and obtained No Objection Certificate from the State of Haryana. From the aforesaid candidates who have obtained No Objection Certificate, the admission shall be made on the basis of merit of NEET for 50% Diploma seats.
15. We have been informed that mop-up counselling is scheduled for 09.06.2017. We direct that a fresh counselling be held on 09.06.2017 and if not completed on 10.06.2017, the seats falling under 50% quota in Post Graduate Diploma Courses, shall be filled by giving opportunities to those candidates who have obtained No Objection Certificate, and as directed above, the admission shall be given on the basis of the marks obtained in the NEET.
16. The writ petition stands disposed of in the above terms.
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