The interpretation of the eligibility criteria and grant of grace marks under the Government resolution dated 19-03-2019 was crucial in determining the petitioner's eligibility as an in-service candidate for NEET-PG-2023.

JUDGMENT :

Mangesh S. Patil, J.

Heard.

2. Rule. Rule is made returnable forthwith.

3. At the joint request, the matter is heard finally at the stage of admission.

4. In substance, the averments of the petitioner are to the effect that he is a MBBS who was appointed as Medical Officer Class – I on temporary basis at Rural Health Training Center, Paithan, District – Aurangabad on 01.06.2016. He completed 5 years at the same post satisfactorily. He was given a permanent appointment and posting at Primary Health Center, Nandar, Tq. Paithan, District - Aurangabad with effect from 01-07-2021, which he joined on 13-07-2021. Having worked in the rural area for more than 3 years, he is entitled to derive the benefit of weightage of marks as an in-service candidate in NEET-PG-2023. When he approached the respondents with a request to grant him no objection certificate it was refused for wrong reasons ignoring the specific clauses 5.2, 5.5 and 6.3 of the Government resolution dated 19-03-2019. Hence he has challenged the order refusing to grant no objection certificate dated 23-01-2023 and has sought a declaration to that effect.

5. The petitioner also claims that similarly situated candidate by name Dr. Rupali Govindrao Shastri was found to be eligible. He also claims that having faced with the situation, he appeared for the NEET-PG-2023 examination and has secured 277 marks and is entitled to additional 30% marks pursuant to the Government resolution dated 19-03-2019.

6. Learned senior advocate Mr. Sapkal would take us through the impugned order as also the Government resolution dated 19-03-2019. He would submit that a careful reading of the different clauses of the Government resolution would reveal that independent of clause 4 laying down different stipulation in respect of request for seeking posting on deputation for the PG courses, clause 5 carves out a separate category in respect of the Medical officers posted in rural and difficult areas including tribal and naxalite areas. He would emphasize that by virtue of clause 5.2 the service rendered in such remote and difficult areas is to be counted for grant of grace marks even if it was on temporary basis. When the petitioner has rendered the services initially on temporary basis for a period of 5 years and, thereafter has been made permanent again in a rural area, he is entitled to tag both these services for claiming the benefit under clause 5.2.

7. Mr. Sapkal would, therefore, submit that the impugned order refusing to grant no objection certificate to the petitioner does not take into consideration these clauses 5.2 and 5.5 and, consequently, is inconsistent with the Government resolution dated 19-03-2019. It is an arbitrary exercise of the power and this Court should cause interference in exercise of the powers under Article 226 of the Constitution of India.

8. Per contra, the learned AGP referring to the affidavit in reply filed by Dr. Mahananda Munde, Deputy Director of Health Service, Aurangabad Region, Aurangabad would submit that petition is misconceived and is not sustainable. He raised a preliminary objection regarding availability of an alternate and efficacious remedy in the form of the petition under section 19 of the Administrative Tribunals Act.

9. He would then submit that by virtue of clause 4.1, 4.2 and 4.4 of the GR dated 19-03-2019 the petitioner was not eligible to derive the benefit under clause 5. He would submit that clause 4 speaks about eligibility of a candidate whereas clause 5 pertains to a situation where a candidate is eligible and is permitted to appear for NEET-PG and it is only for the purpose of grant of grace marks under clause 5 that the resolution stipulates that even temporary service put in the rural areas can be counted to make up 3 years.

10. He would submit that no such temporary tenure can be counted while applying clause 4 which requires a candidate to put in 3 years of service in the permanent cadre. The petitioner has not put in sufficient numbe