Reservation Benefits but no incentive to District Hospital Doctors as Inservice Candidates: MP HC

While quashing the merit list prepared by the Government, the HC division bench comprising of Justice Sujoy Paul and Justice Arun Sharma directed the State to provide the reservation benefits to the petitioner doctors.

"As discussed above, petitioners fall in the category of 'in-service candidates' for the purpose of Postgraduate Medical Courses. The respondents have erred in not treating them in the said category in the impugned chart/table uploaded on the official website on 12/13.11.2021. Since, this deprivation of petitioners runs contrary to the order dated 19.8.2021 and provisions of admission rules, the impugned entries of the chart/table are set aside. The respondents are directed to treat the petitioners as in-service candidates for Postgraduate Degree Course and consider their claim for the same in accordance with law," noted the court.

The issue concerned the petitioner doctors, who are regular employees in the Department of Health Services, State of M.P. The question in the case pertained to whether these doctors belonged to the category of 'in service candidates' and whether they should have separate channel of entry in the P.G medical course.

In the order dated 19.08.2021, the Madhya Pradesh Government had provided 30% reservation for the In-service doctors in admission to PG medical degree courses. The order covered Demonstrator, Tutors and the Medical Officers.

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However, while preparing the merit list, the doctors in MP including the petitioner doctors were excluded from the 30% reserved category as they were working in District and Civil hospitals.

Following this, the petitioner doctors approached the High Court and referring to the order dated 19.08.2021, the counsel for the petitioners contended that they fall in the same category and as per M.P. Chikitsa Shikisha Pravesh Niyam 2018, the petitioner doctors also are covered in the definition of "serving employees".

The counsel for the petitioner doctors, Shri Siddharth Gupta urged that 30% reservation/separate channel of entry is earmarked for Degree Seats for Demonstrator/Tutors/Medicals Officer. The petitioners being Medical Officers are entitled to be considered against reserved seat of 30%, whereas they were treated to be eligible only for open seats. This action of respondents is bad in law and runs contrary to the admission rules, he argued.

At this outset, the counsel for the doctors further referred to the Government policy dated 28.02.2019, which was issued in the Pre-Covid era. In this policy, it was decided to provide additional marks/incentive to the serving candidates. However, the benefit of incentive was confined to the candidates working in rural, remote and difficult areas.

Although, Harda and Indore, where petitioners were admittedly working do not find place in the areas mentioned in the Schedule-1 of said order, Shri Gupta submitted that for those areas, the word "difficult" had been used by the High Court in the case of Brijesh Yadav and others Vs. State of M.P. and others.

Considering the fact that Indore and Harda District Hospitals were also difficult areas where the petitioners were rendering their service 24x7 during Pandemic era, they must be treated to be performing difficult service, and therefore, the benefit of this order dated 28.2.2019 must be extended in favour of petitioners as well, argued the counsel for the petitioners.

Further referring to the judgment in Motor General Traders Vs. State of Andhra Pradesh & Ors. and Malpe Vishwanath Acharya and others Vs. State of Maharashtra and another, the counsel further argued that the order dated 28.2.2019 was passed when Pandemic was not there. During Pandemic, since all the Doctors working in District Hospitals became vulnerable and worked at the cost of their and families' lives, they should be included in the category of difficult posting/area.

On the other hand, the State placed reliance on several judgments pointed out that Supreme Court only covered 'hilly' and 'tribal' areas and it does not include Covid affected hospitals.

The stand of State is that Regulation 9(8) is very clear and a conjoint reading of Regulation 9(8) and order dated 28.02.2019 makes it clear that emphasis is on 'difficult area' and not on 'difficult services'. The area in which petitioners were working were not difficult areas at all, submitted the State.

After listening to the arguments, the Court referred to the said order dated 19.08.2021 and noted, "A conjoint reading of aforesaid order and the rules leaves no room for any doubt that definition of 'in-service candidate' is wide enough to include the medical officers. Admittedly, petitioners were working as Medical Officers in District Hospitals. A combined reading of aforesaid order and rules further makes it clear that there is no impediment in the aforesaid which deprives the petitioner from right of consideration in Post Graduate Degree Course as a separate channel of entry."

"As a consequence, we are constrained to hold that the petitioners have a separate channel of entry being Medical Officers in earmarked 30% total seats of Postgraduate Medical Courses. Regulation 9(8) deals with incentive marks," further noted the court.

"The matter may be viewed from another angle. The Demonstrators and Tutors working in cities/urban areas are treated as 'in-service candidates'. Neither the relevant order nor the rule precludes the Medical Officers working in urban areas or hospitals from benefit of being 'inservice candidate'. If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of 'in-service candidates' and will create a class within the class without there being any rationale and justification for the same," observed the court.

Further referring to the contention of the counsel for getting incentive marks, the bench noted "A careful reading of this order makes it clear that incentive marks were decided to be given to in-service candidates who have worked in rural, remote and difficult areas. Scheduled-1 is appended to this order dated 28.2.2019 whereby "difficult areas" are earmarked. The place of posting of petitioners namely Harda and Indore do not find place in the Schedule. Pertinently, order dated 28.2.2019 is not called in question. The order dated 28.2.2019 is a policy decision taken by the Government which cannot be lightly disturbed. The policy decision can be interfered with on limited grounds. When policy decision is not even challenged, it has to be read as such and this Court cannot re-write and insert something which is not there in their policy decision."

"In view of foregoing analysis, we are unable to hold that 'difficult area' includes "difficult services" rendered in District Hospital Indore and Harda. Thus, question of grant of incentive marks to the petitioners does not arise. To this extent, the petition must fail," read the court order.

Thus, partly allowing the petition, although the bench denied interfering with the policy decision it opined that the petitioner doctors should be granted with the 30% reservation earmarked for Inservice doctors.

"As discussed above, petitioners fall in the category of 'in-service candidates' for the purpose of Postgraduate Medical Courses. The respondents have erred in not treating them in the said category in the impugned chart/table uploaded on the official website on 12/13.11.2021. Since, this deprivation of petitioners runs contrary to the order dated 19.8.2021 and provisions of admission rules, the impugned entries of the chart/table are set aside. The respondents are directed to treat the petitioners as in-service candidates for Postgraduate Degree Course and consider their claim for the same in accordance with law," the bench mentioned in the order.

To read the court order, click on the link below.

https://medicaldialogues.in/pdf_upload/pg-medical-course-doctors-mp-hc-407649-168400.pdf

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