India

DB upholds eligibility of NRHM doctors for benefits of MCI Regulations

Golden yug
[ May 19, 2017 ] Jammu, May-19-2017-(JNF):- In a LPA filed by State against the judgment of Writ Court whereby Writ Court holds that NRHM doctors are eligible for the benefits of Regulation 9 of MCI regulations 2000 which provides that a doctor who served in difficult/remote areas shall be entitled to 10% additional marks for each completed year of service, A Division Bench of the State High Court Comprising Justice Alok Aradhe and Justice Dhiraj Singh Thakur after hearing Jehangir Iqbal Ganai, Advocate General with Mr. Ashish Singh Kotwal, Dy. AG., Sunil Sethi, Sr. Advocate with Waheed Chowdhary, Advocate for the appellants whereas Adv Abhinav Sharma, Z. A. Shah, Sr. Advocate with Vipan Gandotra, Advocate, K. S. Johal, Sr. Advocate with Javed Iqbal Balwan, Advocate for the respondents uphold the judgment of writ Court whereby writ Court holds that NRHM doctors are eligible for the benefits of Regulation 9 of MCI regulations 2000 which provides that a doctor who served in difficult/remote areas shall be entitled to 10% additional marks for each completed year of service. Division Bench further observed that during the course of the submissions it is stated at the Bar that after the ad-interim order passed by this Court on 03.05.2017, the appellants herein have held the counselling and have prepared the provisional merit list, which has been made subject to outcome of this LPA. In view of preceding analysis, Division Bench directed 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 and thereafter to hold fresh counselling and to allot the seats. DB further said that the aforesaid process be completed on or before 31st of May, 2017 as per the time schedule fixed by the Supreme Court. Division Bench observed that 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 brining 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 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: “The rural service seats/difficult area service shall be filled up strictly in accordance with the rules on the subject including MCI regulation proviso 9(2)d read with the Hon’ble Supreme court judgment in the case titled Dinesh Singh Chauhan v. State of U. P. and ors. (The relevant extract of the MCI regulations and the Hon’ble Supreme Court judgment is available on the BOPEE website and the candidates are advised to go through these in their own interest).” DB further observed that 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 operation guidelines 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. 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. It is pertinent to mention here that Board of Professional Entrance Examination had taken up the issue with regard to eligibility of the Medical Officers under rural service/difficult areas service. However, no action was taken by the State Government, therefore, the Board of Professional Entrance Examination by communication dated 25.02.2017 was pleased to clarify that on receipt of clarification from the Government, decision shall be incorporated appropriately and such decision shall be notified. Thereafter from perusal of communication dated 03.03.2017 it is evident that the issue relating to difficult and rural areas was discussed in detail and despite large number of communications sent by the Board of Professional Entrance Examination, no response from the State Government was received. Therefore, the Board of Professional Entrance Examination vide notification dated 03.03.2017 issued the select list and decided to grant the benefit of SRO 401. Thus, it is evident that the State Government did not take any action with regard to defining of remote and difficult areas and for in action on the part of the State Government, the Medical Officers cannot be allowed to suffer and National Rural Health Mission is a Society registered under the Societies Registration Act and perform public duty, therefore, on the touchstone of the parameters law laid down in Paragraph 29 by the Supreme Court in the case of Binny Ltd. & another v. V. Sadasivan & others, , the same would satisfy the test of public authority. Even otherwise the issue with regard to status of National Rural Health Mission as a public authority need not detain us as in the document annexed with the writ petition, the State Government itself has described Director, National Rural Health Mission Jammu and Kashmir as public authority. Accordingly, the aforesaid issue is answered. DB further observed that so far as issue No.3 is concerned, in view of discussion with regard to issue Nos.(i) and (ii), the respondents would be entitled to the benefit of Regulation 9 of the Regulations. Accordingly, issue No.(iii) is answered. However, DB 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, DB agree with the conclusion recorded by the Single Judge, but for different reasons which this Court have recorded supra. DB further observed that during the course of the submissions it is stated at the Bar that after the ad-interim order passed by this Court on 03.05.2017, the appellants herein have held the counselling and have prepared the provisional merit list, which has been made subject to outcome of this LPA. 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 and thereafter to hold fresh counselling and to allot the seats. Let the aforesaid process be completed on or before 31st of May, 2017 as per the time schedule fixed by the Supreme Court. With these observations Division Bench disposed of LPAs.