Back
2020 Supreme(Pat) 452
IN THE HIGH COURT OF JUDICATURE AT PATNA
Anil Kumar Sinha, J.
Dr. Ravi Ranjan Kumar, Son of Ramchandra Prasad & Anr. – Petitioners
Versus
The State Of Bihar through the Chief Secretary & Ors. - Opposite Parties
Civil Writ Jurisdiction Case No. 15523 of 2018
Decided On : 27-04-2020
Advocate Appeared:
For the Petitioner: Mr.Ashish Giri, Ms. Deepika Sharma
For the Respondent: Mr. Kinkar Kumar
Headnote:
Educational Law – Medical Education – Post Graduate Medical Education Regulation, 2000 – Regulation 9(iv) – preparation of State merit list for admission to State quota seats in PG Medical Courses (Degree/Diploma) in the Session 2019, Conducted by BCECE Board by granting incentive marks to in-service Government/public authority, to the extent 10 per cent of the marks obtained for each year of service rendered in remote and/or difficult arreas and up to the maximum of 30 per cent of the marks obtained in the NEET as per Regulation 9(iv) of Regulation, 2000, as amended – petitioners are working as General medical officers in the State of Bihar and claim to be entitled to be given incentive marks in terms of the said Regulation 9(iv) – State's contention that proviso to Regulation 9(iv) of the Regulation, 2000 is discretionary in nature is spacious and not tenable in law and facts – it has been settled by the Supreme Court that the purpose behind the proviso is to encourage graduates to join as medical officers and serve in notified remote and difficult areas of the state – this provision has been brought into force in larger public interest and not merely to provide institutional preference – the procedure evolved in Regulation 9 in general and proviso to clause (iv), in particular, is just, proper and reasonable and also fulfils the test of Article 14 of the constitution of India, being larger in public interest – insuch view, merit of the candidates will not be affected – it is well settled that a proviso is in the nature of exception to a main provision and has to be strictly construed – the only discretion, which the state government is posited with, is the discretion to notify the areas within the territory of the state as remote, rural or difficult areas – state respondents have no option, but so mandatorily follows the proviso to Regulation 9(iv) of the Regulation, 2000, as amended and non-adherence to the provisions of Regulation 9(iv) and its proviso of Regulation, 2000, by the State respondents will defeat the very purpose and object of the amendment which has been brought into force in larger public interest – state respondent's – Contention rejected and concerned respondents directed to consider the petitioners' claim – writ application allowed. (Paras 36 to 40)
(2016)9 SCC 749, (2018)17 SCC 426, (1976)1 SCC 226, (1994)6 SCC 205, (2004)6 SCC 331—Referred.
JUDGMENT :
Anil Kumar Sinha, J.
This writ application has been listed before me for hearing through video conferencing under the orders of the Hon'ble the Chief Justice in view of the prevailing lockdown due to COVID-19 pandemic.
2. The present writ application has been filed by the petitioners, who are MBBS doctors and have been working as General Medical Officers in the State of Bihar, initially for issuance of a writ in the nature of mandamus for a direction to the State respondents to prepare the State merit list for admission to State quota seats in Post Graduate Medical Courses (Degree/Diploma) in the session 2019, conducted by respondent no. 6, the Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as 'BCECEB'), by granting incentive marks to in-service Government/public authority, to the extent of 10 per cent of the marks obtained for each year of service rendered in remote and/or difficult areas and up to the maximum of 30 per cent of the marks obtained in the National Eligibility -cum-Entrance Test (hereinafter referred to as 'NEET') as per Regulation 9 (IV) of the Post Graduate Medical Education Regulation, 2000, as amended and lastly notified vide Notification No. MCI-18(1)/2010-Mad/62052, dated 15th February, 2012, and made applicable for the academic year 2013-14 (hereinafter referred to as 'Regulation, 2000').
3. During the pendency of this writ application, the admission process for the session 2019 got completed and the petitioners have filed I.A. No. 2 of 2020, for amendment of the prayer for a direction to the State respondents to prepare the State merit list for admission in various medical colleges for MD/MS/Post Graduate Diploma Courses for the session 2020, conducted by respondent no. 6, BCECEB, by granting them incentive marks as per Regulation 9 (IV) of the Regulation, 2000, and also in terms of the direction of the Supreme Court, in the case of State of Uttar Pradesh and Others v. Dr. Dinesh Singh Chauhan, reported in (2016) 9 SCC 749. The amendment application filed by the petitioners has been allowed by this Court by order, dated 23.04.2020.
4. The brief facts, giving rise to the present writ application, is that the petitioner no. 1 has successfully completed his MBBS examination from Aryabhatt Knowledge University, Patna in December, 2014, and was registered in the Bihar Council of Medical Registration vide Certificate No. 44229, dated 14.03.2016. The petitioner no. 2 has completed his MBBS examination from Aryabhatt Knowledge University, Patna in July, 2014, and he also got himself registered in the Bihar Council of Medical Registration vide Certificate No. 43680, dated 13.10.2015. It has further been stated that the Health Department, Government of Bihar issued a notification, vide memo no. 2/Court-59/13-695 (2), dated 17.06.2014, stating therein that except the State Headquarter and the District Headquarter Health Centres/Hospitals, all other health centres have been marked to be remote or difficult areas and in support of the same, the petitioners have annexed the copy of the notification, dated 17.06.2014, as Annexure-3 to the writ application. The petitioner no. 1 has joined as General Medical Officer in the Primary Health Centre, Ekangarsarai, in the district of Nalanda, on 20.02.2017 and has been working in the said Primary Health Centre to the satisfaction of the respondent authorities, and the petitioner no. 1 claims that the said Primary Health Centre falls under the remote area, as per notification, dated 17.06.2014.
5. Likewise, the petitioner no. 2 joined as General Medical Officer in the Primary Health Centre, Jaipur, Kaler, in the district of Arwal on 19.12.2016 and since then, he has been working to the satisfaction of his superiors, and claims that the Primary Health Centre, Jaipur, Kaler, falls under the remote area, as per the notification, dated 17.06.2014.
6. Mr. Ashish Giri, learned Counsel for the petitioners, submits that he has brought on record the c
