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2017 Supreme(J&K) 755
IN THE HIGH COURT OF JAMMU AND KASHMIR
ALOK ARADHE, DHIRAJ SINGH THAKUR, JJ.
State of J&K and others - Appellants
Versus
Shahnawaz Ahmed Choudhary and others - Respondents
LPASW No. 85 of 2017, MP No. 1 of 2017, Caveat No. 1597 of 2017 c/w LPASW No. 91 of 2017, MP No. 1 of 2017
Decided On : 19-05-2017
For the Appellants : Mr. Jehangir Iqbal Ganai, Mr. Ashish Singh Kotwal, Mr. Sunil Sethi, Mr. Waheed Chowdhary
For the Respondents: Mr. Z.A. Shah, Mr. Vipan Gandotra, Mr. K.S. Johal, Mr. Javed Iqbal Balwan and Mr. Abhinav Sharma
Regulation 9 of the Regulations, which provides weight-age in marks for service in remote and difficult areas, is applicable when the State Government has identified the remote and difficult areas, and the National Rural Health Mission is considered a public authority.
Headnote:
Medical Council of India - Post Graduate Medical Courses - Indian Medical Council Act, 1956, Section 33, Section 20 - Regulations - Proviso - National Rural Health Mission - SRO 401 of 2009 - Regulation 9 - Weight-age in marks for service in remote and difficult areas - LPASW No. 85/2017, LPASW No. 91/2017
Fact of the Case:
A Common Entrance Test for admission to Post Graduate Courses in Medicine was held, and the result was declared with qualifying criteria for various categories. The respondents in LPASW No. 85/2017 were employed under the National Rural Health Mission and sought relief of quashment of SRO 401 dated 29.12.2009 and a writ of mandamus for weight-age in marks as per Regulation 9 of the Regulations. The learned Single Judge allowed the writ petition, directing the appellant in LPASW No. 85/2017 to award the weight-age in marks in terms of Regulation 9 of the Regulations.
Finding of the Court:
The Court found that the State Government had identified the remote and difficult areas, making Regulation 9 of the Regulations applicable. The National Rural Health Mission was considered a public authority, and the respondents were entitled to the benefit of Regulation 9 of the Regulations. The Court directed the appellants 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 hold fresh counselling and seat allotment.
Issues: 1. Whether Regulation 9 of the Regulations would apply in the absence of definition by the State Government/Competent Authority with regard to difficult and/or remote areas? 2. Whether National Rural Health Mission is a public authority as defined under proviso to Regulation 9 of the Regulations? 3. Whether respondents are entitled to benefit of Regulation 9 of the Regulations?
Ratio Decidendi: The Court held that Regulation 9 of the Regulations would apply as the State Government had already identified the remote areas, and the National Rural Health Mission was considered a public authority. The respondents were found entitled to the benefit of Regulation 9 of the Regulations.
Final Decision: The Court directed the appellants 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 hold fresh counselling and seat allotment.
Mr. Alok Aradhe, J.
Both these intra Court appeals have been preferred against judgment dated 26.04.2017 passed by learned Single Judge in SWP No. 577/2017. Since common questions of law and fact arise for consideration in these appeals, they were heard analogously and are being decided by this common judgment. In order to appreciate the appellants' challenge to the impugned judgment few facts need mention, which are stated infra :
2. A Common Entrance Test for admission to Post Graduate Courses in Medicine, namely, National Eligibility-cum-Entrance Test was held by the National Board of Examinations between 05.12.2016 to 13.12.2016. The respondents in LPASW No. 85/2017 and the appellants in LPASW No. 91/2017 appeared in the Examination. The result of National Eligibility-cum-Entrance Test was declared on 13.01.2017 and qualifying criteria for various categories, namely, General, SC, ST, PBC and Persons with disability was prescribed as 50%, 40% and 45% percentile respectively.
3. In exercise of powers under Section 33 read with Section 20 of the Indian Medical Council Act, 1956, the Medical Council of India framed Post Graduate Medical Education Regulations, 2000 (herein-after referred to as "Regulations") which were amended from time to time. The Regulations were amended in the year 2012 by a Notification 15.02.2012, by which a Proviso was incorporated in the Regulations, enabling the State Government to provide weight-age in marks as an incentive @ 10% of the marks obtained for each year of service in remote and are difficult areas upto maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test and the remote and difficult % areas was to be defined by the State Government/Competent Authority from time to time.
4. The respondents in LPASW No. 85/2017 were employed under the National Rural Health Mission on contract basis. According to the aforesaid respondents they were employed in difficult rural areas. However, Board of Professional Entrance Examination in flagrant violation of Regulation 9 of the Regulations framed by the Medical Council of India decided to give weight-age to in-service candidates not in accordance with Regulation 9 but in terms of SRO 401 of 2009 dated 29.12.2009, which provides for weight-age of only 2, marks for each completed years of service in rural service/difficult areas subject to maximum of 10 marks. In the aforesaid factual background, respondents in LPASW No. 85/2017 approached this Court by filing the writ petition in which, inter alia, relief of quashment of SRO 401 dated 29.12.2009 was sought on the ground that the same is violative of Regulation 9 of the Regulations. A further relief of quashment of Notification dated 25.02.2017 to the extent of decision regarding weight-age of marks on account of rural service/difficult areas which was kept at the disposal of the State Government was also sought. A writ of mandamus was also sought seeking a direction to the appellants in LPASW No. 85/2017 to grant them the weight-age in marks as per Regulation 9 of the Regulations for having served in difficult areas.
5. The learned Single Judge vide impugned judgment dated 26.04.2017, allowed the writ petition and directed the appellant in LPASW No. 85/2017 to award the weight-age in marks in terms of Regulation 9 of the Regulations and to redraw the State merit list so that admission process is completed within the stipulated period. In the aforesaid factual backdrop, the State Government has filed LPASW No. 85/2017, whereas, the candidates holding MBBS Degree and are not in-service candidates have filed LPASW No. 91/2017.
6. Learned Advocate General fairly submitted that the Regulations framed by the Medical Council of India being Statutory in nature are binding on the State Government. It is further submitted that learned Single Judge grossly erred in holding that respondents in LPASW No. 85/2017 are entitled to benefit of Regulation 9 of the Regulations, as the State Governmen
