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2020 Supreme(Pat) 123
IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, S. KUMAR, JJ.
Ankit Abhishek, S/o Dr. Indrajeet Kumar Sinha – Appellant
Versus
Dr. Ravi Ranjan Kumar Son of Ramchandra Prasad – Respondent
Letters Patent Appeal No.255, 256 of 2020 In Civil Writ Jurisdiction Case No.15523 of 2018
Decided on : 28-05-2020
Advocate Appeared:
For the Appellant :Mr. P.K. Shahi, Mr. Alok Ranjan, Advocate
For the Respondents:Mr. Ashish Giri, Mr. P. N. Shahi, Mr. Sanjeet Kumar Singh, Mr. Vikas Kumar, Mr. Kumar Brijnandan, Advocate
Headnote:
Service Law – Service Benefits – Constitutional Court is duty bound to ensure that benefits, under and in terms of Constitution, are conferred upon those who rightly deserve, particularly when it would sub-serve public interest and promote public good and a public cause – State cannot be allowed to argue that benefit of Regulation framed by Medical Council of India cannot be conferred only for reason that it would affect interest of doctors serving in urban areas – Discretion of according such benefits, vests with Government, but then, its exercise has to be based on some rational and not in an arbitrary and capricious manner – There is no logic of depriving doctors posted in rural areas of such benefits – A healthy body is the very foundation for all human activities – In a welfare State it is obligation of State to ensure creation and sustaining of conditions congenial to good health – Percentage of vacancies of doctors in rural areas is extremely high and grossly disproportionate as against doctors in urban areas. (Paras 7 to 10, 57 and 58)
Medical Council of India Act, 1956 – Sections 20 and 33 – Regulation 9(IV) and 9(VII)of Regulations framed by the Medical Council of India – Admission in various Post Graduate Medical Courses including MD/MS/PG DIPLOMA/PG DENTAL (MDS) – Regulations framed by MCI are binding on State, and in exercise of power under Entry 25 of List III of Constitution, cannot make rules and regulations which are in conflict with or adversely impinge upon regulations framed by MCI for postgraduate medical education – Grant of 50% reservation in P.G. Diploma Course to in-service doctors who have served three years in rural areas is mandatory under Regulation 9(VII), however, same is granted only when State notifies remote/difficult areas and once such declaration being made 50% reservation in P.G. Diploma Course is automatic and no discretion is left with State to grant it or not – However, grant of incentive under Regulation 9(IV) in P.G. Degree course, decision of State Government is desirable and if circumstances and factors exist in State for which proviso was inserted in Regulation 9(IV), then State could not and should not deny such incentive – Large number of posts in Rural Health Centres/Hospital is vacant as doctors are not willing to serve in such areas and for this reason, MCI provided incentive to motivate doctors to serve in such areas by adding weightage of 10% to 30% in marks of NEET – Percentage of vacancies in rural areas is extremely high and grossly disproportionate to that of posting of doctors in urban areas – All candidates who have participated in selection process, including writ petitioners and are otherwise eligible, would be entitled to benefit of Notification No.1037(2)/Health dated 27.08.2013 and Notification No.695(2)/Health dated 17.06.2014 issued by Government of Bihar. (Paras 15, 51, 52, 69, 75, 77 and 86)
Letters Patent Appeal – Scope and ambit – Powers of Court even in a Letters Patent Appeal, are wide enough to review both finding of fact and law – A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity – It is responsibility of High Court as custodian of Constitution to maintain social balance by interfering where necessary for sake of justice and refusing to interfere where it is against social interest and public good. (Paras 80 and 81)
(1995) 3 SCC 42; (2016) 9 SCC 749; (1987) 2 SCC 165;1989 Supp (1) SCC 644;(1998) 6 SCC 131 ; (1999) 7 SCC 120; (2003) 11 SCC 146 ; (2019) 10 SCC 1; (1980) 2 SCC 768 ; (2013) 10 SCC 237;(1984) 3 SCC 654;(1971) 1 SCC 85 ; (2016) 3 SCC 762 ; (1996) 6 SCC 44;(2015) 8 SCC 744 ;(1977) 2 SCC 579; (2017) 14 SCC 642;(2017) 14 SCC 655; (2018) 17 426; (1990) 3 SCC 682; (1996) 4 SCC 37; (1998) 4 SCC 117; (2018) 5 SCC 1; (2019) 2 SCC 636; (2010) 10 SCC 677;(1974) 2 SCC 492; (2010) 14 SCC 316; (2018) 17 SCC 106; 1986 Supp SCC 401; (1996) 3 SCC 52; 2016 (3) SCC 340 ; AIR 1963 SC 1279 – Relied.
JUDGMENT :
Every trial is a voyage of discovery in which truth is the quest. With this endeavour we have ventured to adjudicate the lis, based on admitted and undisputed facts.
2. Right to good health and access to basic facilities of health is now is an important facet of right to life under Article 21 of the Constitution. Justice which has to be social cannot be limited only to sub-serve the interest of the affluent, the rich and the empowered.
3. The concept “social justice”, which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. “Social justice” is thus an integral part of ‘justice’ in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress and to make their life liveable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation. Social security, just and humane conditions of work and leisure to workman are part of his meaningful right to life and to achieve self-expression of his personality and to enjoy the life with dignity; the State should provide facilities and opportunities to enable them to reach at least minimum standard of health, economic security and civilised living while sharing according to their capacity, social and cultural heritage. This is what stands observed by Hon’ble the Apex Court in Consumer Education & Research Centre and others Versus Union of India & Ors. (1995) 3 SCC 42.
4. Shockingly, in the course of discovery of truth, we find the State to have breached its Dharma of acting in public interest for the benefit of teaming millions living in the rural areas, but also not maintaining its neutrality, in the accomplishment of the constitutional goals and determination of rights inter se private parties. The stand taken is both immoral and illegal. In fact, we find the Department to have adopted a partisan approach, ensuring that the most marginalized and deprived ones are not benefited of the medical infrastructure and facilities in the rural parts of the State. Bihar is the most populated State of the country, having highest density of population ratio, with a rural based demography comprising of remote, rural and hilly areas, with little bit of cosmopolitan culture or area.
5. The health care facilities in the remote and difficult areas of the State, to say the least, are desirable, also for want of posting of adequate doctors. Undisputedly, in Bihar out of 11645 sanctioned posts of doctors, 8768 are lying vacant, out of which 5674 fall only in the difficult/remote/rural areas. As against 1544 doctors posted in the urban areas only 1333 are posted in the rural areas, reflective of the iniquitous and lopsided welfare health policy of the Department. And despite the same, as is stated on an affidavit, Department has chosen not to grant incentive of weightage in marks in terms of its two Notifications dated 27.08.2013 and 17.06.2014, to be added in computing the merit on the basis of National Eligibility-cum-Entrance Test (NEET), to the doctors posted in the rural/remote/difficult areas, for the reason that “the merit would stand compromised and would adversely affect the in service doctors posted at urban areas” and, therefore, it is not appropriate and justifiable to give any weightage to the in service doctors posted at rural/remote areas over and above to those posted at urban areas.
6. Can a Welfare State even adopt such a stand more so in the a
