Service in Specialized Units does not amount to Service in Remote areas: HC

"Even if the petitioners have done Covid-19 duty in excess of 1 year, the petitioners cannot use the service rendered in Specialized Units as a substitute for serving in rural/ remote/ difficult areas," noted the HC bench comprising of Justice Moushumi Bhattacharya as it dismissed the plea.

The High Court was considering the plea by 53 graduate doctors who are serving as Medical Officers in different hospitals in the State and they have all qualified the NEET PG Examination, 2021.

The doctors prayed for setting aside an order dated 3^rd January, 2022 passed by the Department of Health and Family Welfare and sought to declare them to be eligible for the in-service quota by dint of serving in Specialized Units in terms of a statutory amendment notified on 21st January, 2016 by the Department of Health and Family Welfare, Government of West Bengal.

Arguing that the doctors, who are working in the Specialized Units like Sick Newborn Care Unit (SNCU), High Deficiency Unit (HDU), etc, should be considered as having fulfilled the in-service quota conditions, the counsel for the doctors further submitted that all of these 53 doctors have completed more than 3 years of service in those specialized units. However, these contentions were vehemently opposed by the State.

Taking note of these submissions, the High Court bench noted that the question which concerned the case was whether service in Specialized Units would amount to serving in "remote and/or difficult areas" for the purpose of qualifying for the 40% reservation for the inservice doctors for post-graduate medical degree seats.

The court observed that the expression "remote and/or difficult areas" is defined in Explanation II of the Notification dated 26th February, 2020 to mean and include (i) the hill areas under the provisions of the Gorkhaland Territorial Administration Act, 2011; (ii) the Sundarbans; (iii) the areas under the Paschimanchal Unnayan Parshad and (iv) the areas under the Uttarbanga Unnayan Parshad.

Again the Department had used the expression "rural/remote/difficult area" in the order dated 3^rd January, 2022, where it had reiterated its stand that in order to avail the in-service quota, the in-service candidates of the Department "shall have to serve in rural/ remote/difficult area for a minimum of three years as on 30th April of the academic year."

This was reiterated by the memo dated 25^th January, 2022, as the criterion for availing in-service quota had been made clear and the definition of "difficult area" was extended by including Covid-19 related duty as part of eligibility.

In contrast, the concept of "Specialized Units" finds place only in the Amendment to the West Bengal Medical Education Service, West Bengal Health Service and West Bengal Health –cum– Administrative Service (Placement on Trainee Reserve) Rules, 2015 as notified on 21st January, 2016. This Notification is limited to bringing in two additional provisos to Rule 3 of the 2015 Rules.

The Amendment notified on 21st January, 2016 brings in a relaxation to the compulsory qualifying rural service in the case of Specialized Medical Officers who have been directly recruited through the Public Service Commission and appointed by the State Government in Specialized Units mentioned in the Amendment of 21st January, 2016.

Hence read together, the 2015 Rules and the 2016 Amendment would mean that for being placed as Trainee Reserve Government Sponsored Candidates, Specialist Medical Officers, who have been directly recruited through the Public Service Commission or the West Bengal Health Recruitment Board and appointed by the State Government in Specialized Units, may use the service rendered in such Specialized Units as a substitute for the qualifying service rendered in rural areas in Primary Health Centers, Block Primary Health Centers and Rural Hospitals.

Taking note of all these factors, the HC bench noted, "The concept of appointments in Specialized Units or using the service rendered in such units as a substitute for any of the other notified criteria for being eligible for the in-service quota does not find place in any of the Notifications/ Memo after 21st January, 2016. This omission is crucial for the petitioners' case, since the petitioners claim to have been included in the 2015 Rules which were notified in exercise of the power conferred under section 21 of the West Bengal State Health Service Act, 1990; and unfairly excluded in subsequent Notifications even though the criteria were relaxed for Covid19 duties by the Corrigendum of 25th January, 2022."

Thereafter, while considering the question of whether the petitioner doctors would enjoy statutory protection, as claimed, in relation to in-service quota, the HC bench noted, "The petitioners' prayer for declaration and consequent relief is based on the Placement on Trainee Reserve Rules, 2015 as amended on 21st January 2016. The 2015 Rules are concerned with the eligibility criteria for placement on trainee reserve as Government sponsored candidates which include a minimum of 3 years' service actually rendered in rural areas for West Bengal Health Service. The 2015 Rules however have nothing to do with the 40% reservation for in-service Medical Officers and actually operate at a stage subsequent to the entry-level reservation for postgraduate medical seats. This would be clear from Rule 5 of the 2015 Rules which specifies that the application for placement as trainee reserve can be made only after the candidate has been selected or invited for counselling before admission. The 2015 Rules do not mention reservation for in-service Medical Officers of the State Services anywhere, except in the Note to Rule 3(iv) which indicates that the Department of Health and Family Welfare shall specify the number of seats available for the different courses run by the West Bengal University of Health Sciences and other Universities within the State."

"Hence, the argument that the amendment to the Placement on Trainee Reserve Rules 2015 forms the basis of the petitioners' claim for inclusion in the in-service quota is belied from the Rules itself," the court noted.

At this outset, the HC placed reliance upon the Supreme Court judgment in the case of Tamil Nadu Medical Officers Association and noted that "The impugned order of 3rd January, 2022 is a reiteration of the Department's commitment to carry out the mandate of the Supreme Court and this Court therefore does not find any infirmity in the basis of the said impugned order. The first prayer in the present writ petition for setting aside of the impugned order dated 3rd January 2022 is declined for the aforesaid reason."

Regarding the prayer for declaring that the petitioner doctors are eligible for in-service reservation for serving in Specialized Units, the bench noted, "the said prayer does not find support in any of the Rules or Notifications issued by the State Department. Without a statutory or regulatory foundation of inclusion in the eligibility parameters for in-service quota, the petitioners have avowedly sought this relaxation for the first time before this Court."

At this outset, the bench further noted, "The expressions "rural areas" and "remote and/or difficult areas" have been given a specific definition in the Notification dated 26th February, 2020 and are not open-ended terms. Hence the definition of rural or remote/difficult areas cannot be stretched or expanded at will to suit the needs of a particular group of doctors or any other persons for that matter."

"The relaxation brought in by the Memo dated 25th January, 2022 − Covid-19 related duties cannot be seen to be outside the powers of the State Government since the 5th paragraph of the Notification dated 8th October, 2021 states that the definition of rural/ remote/difficult area shall be subject to "modification from time to time, as per the demanding situation." The Department, in response to the emergent situation brought about by the pandemic, thought it fit to complement the "difficult area" requirement with Covid-19 duties," further noted the court.

Terming the claim for equivalence between service in Specialized Units to that in remote/difficult areas to be "unreasonable", the bench further observed, "There is no corroborating material to show that a parallel must be drawn between serving in Specialized Units and in remote or difficult areas. Even without the specifics of the definition given to "remote and / or difficult area" in the Notification, the expression indicates areas/places removed from the main cities and which would not be the preferred posting of doctors. The specific naming of the areas both under "rural areas" and "remote and/or difficult areas" in particular would lead to the inescapable conclusion that the 40% quota was being given as an incentive to those doctors who sacrifice the convenience of city-life and work in far-flung areas where life is otherwise difficult."

The bench also observed that service by doctors in rural and difficult areas should be read as part of the overall objective of the State to extend the access, availability and benefits of medical services in remote areas.

However, the bench agreed that "service in Specialized Units like SNCU, HDU, CCU, ICCU and ITU is by no means an easy task and may require round-the-clock duties" and noted, "This Court recognizes the commitment shown by the in-service doctors who render 24x7 service in these Specialized Units."

"However, to include service in such Specialized Units within the definition of "rural and/or difficult areas" would amount to making in-roads into the policy frame-work of the State Government which a Writ Court should normally hesitate to do unless compelling reasons exist. A policy decision is not a perpetual no-go area and a Writ Court can certainly interfere in fit cases including where the policy is not backed by legislative competence or where there is an excessive delegation of essential legislative functions or an infraction of the fundamental rights guaranteed under the Constitution of India," further read the order.

Thus, disposing of the petition, the bench clarified that "Even if the petitioners have done Covid-19 duty in excess of 1 year, the petitioners cannot use the service rendered in Specialized Units as a substitute for serving in rural/ remote/ difficult areas."

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