ASHA PRATIBHA KHALKHO Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioners who are working as doctors in the dispensaries maintained under Employees' State Insurance Act, 1948, are challenging Rules 9. 5 b (i), (ii), (iii) and 8. 5 (b) of the Rules for Post-graduation (M. D. / M. S. Course) in clinical and Non-Clinical Disciplines in Medical Colleges in Madhya Pradesh, giving weightage to the Assistant Surgeons in State Medical Services and not to the e. S. I. doctors and consequentially their non-selection for doing post-graduation.

(2.) THE petitioners are working as doctors on the post of E. S. I. Medical officers/ Assistant Surgeons in the Employees' State Insurance Services under the department of Labour, State of M. P. , having been duly appointed under section 58 of the Act read with State Insurance Service Rules. All these 5 petitioners had applied for doing post-graduation in different disciplines in 1987 quota in Medical colleges at Indore and Bhopal, Rule 9. 2 (a) provides that applications shall be invited for doing post-graduation from Assistant Surgeons serving in the State and along with necessary enclosures the applications shall be submitted to the Director of Medical Services and those serving under the Director E. S. I. , through him, showing thereby that the E. S. I. doctors have also to apply in the reserved quota of assistant Surgeons. But under Rule 9. 5 (B) certain weightages are given to the assistant Surgeons serving in the State services only. Under sub-clauses (i) and (ii)the doctors who are working in scheduled areas or rural areas not within 50 kms. from the municipal limits or 20 kms. from the notified areas will be given 10 marks for each year of service in scheduled area and 5 marks for each year of service in rural area subject to the maximum of 50 marks. Under sub-clause (iii) for each block of 20 sterilisation operations done by a, candidate will earn 5 marks subject to maximum of 100 marks. These rules were to the great prejudice of the doctors working under Employees' Insurance Services. It is a well-known fact that the hospitals and dispensaries are located only in industrial and urban area attached to e. S. I. scheme. E. S. I. medical service has been constituted to discharge the statutory obligations in the State under various labour legislations including E. S. I. Act. The doctors working in E. S. I. services, due to the inherent nature and condition of their service, do not get any opportunity to work in scheduled areas or rural area and cannot obtain weightages marks provided under Rule 9. 5 B (i to iii) which is available to their counter-parts in State services. Similarly, the doctors in E. S. I. services cannot conduct sterilization operations in sufficient numbers for want of adequate number of patients and facility in their hospitals and dispensaries. One of the petitioners, petitioner No. 4 conducted a few sterilisation operations but he was informed by communication dated 15-9-1987 not to undertake sterilisation operations since his dispensary is not well-equipped for that purpose. So the E. S. I. doctors are handicapped from securing additional marks by doing service in scheduled or rural areas and by doing sterilisation operations. So the doctors working in the State services get ample opportunity to work in rural and scheduled areas and doing sterilisation operations, thereby get an unfair advantage or an edge over E. S. I. doctors, in determining comparative merit, for admission to the post-graduate courses. Although the petitioners were more meritorious than some of the assistant Surgeons who were given admission, they have been deprived of the admission because they did not get any weightage. Rule 9. 5 B (i to iii) deserves to be struck down as being discriminatory to doctors in E. S. I. services, who constitute a separate class, deserving fair and equal treatment. It is further contended that under rule 8. 5 (b) (ii) weightage of 10 marks is given for participating in inter-university event and/or for securing a prize at an All-India event on behalf of college or university. It may be noticed that 'inter-university event' or 'all India event' has nowhere been defined in the admission rules. So this particular rule is utterly vague and it provides unlimited scope to clever candidates by producing bogus certificates of awards and prizes which are neither 'inter-university' nor 'all India'. The rule so far has been used to procure' bogus certificates and awards only to get weightage. This rule deserves to be struck down because it gives unfair advantage to less meritorious candidates. The petitioner No. 1 who is a scheduled tribe has not been given admission although there is reservation for scheduled castes and scheduled tribes.

(3.) THE respondents in their return contended that Rule 9. 5 B (i to iii) and the rule 8. 5 B (ii) are valid rules and they are not discriminatory. It is open to the E. S. I. doctors to get them posted in the scheduled areas to get advantage under Rule 9. 5 B (i), as for example, Shahdol and Raigarh are scheduled areas where there are dispensaries run under Employees' State Insurance Service. It is well-known that doctors avoid going to scheduled areas and rural areas, with the result the hospitals there invariably remain vacant. A provision has, therefore, been made under Rule 9. 5 B (i) and (ii) to give additional marks to doctors who went to work in scheduled or rural areas as incentive for doing post-graduation. Sterilisation operations are of two kinds, one performed on male and the other performed on female, commonly called VT and TT respectively. V. T. operations can be performed in any dispensary including E. S. I. dispensaries. Even private doctors are also doing sterilisation by availing of the facilities in private dispensaries or hospitals. Voluntary organisations are also doing sterilisations for promotion of family planning under health and Family Welfare Department. In fact, many dispensaries run under e. S. I. Scheme are without doctors. Most of the Government dispensaries are in urban areas. Rule 8. 5 (b) (ii) is applicable to all doctors who have participated in inter-university or All-India events. There is no reservation in the Assistant surgeons' quota for scheduled castes and scheduled tribes. There is reservation for scheduled castes and scheduled tribes in merit quota for doing post-graduation. A few seats are reserved for Assistant Surgeons in State Medical Services who constitute a different class in themselves who are serving in the State service for the last 5 years. A further reservation for members of scheduled castes and scheduled tribes is not proper. Therefore, the petition is devoid of any merit.