BHASKAR GAYEN Vs. SUBHADIP MULLICK

JUDGEMENT

(1.) Apparently an interim order passed on a bunch of writ petitions evoked more appeals than the number of writ petitions and in the process appeals filed after obtaining leave of the Court have outnumbered the writ petitions and if this is not what is generally experienced in an adversarial litigation one further point also needs to be mentioned that the interim order was not challenged by any of the respondents to the writ petitions. Strangers felt aggrieved by the interim order, obtained leave of the Court and filed numerous appeals at different points of time. This is not to speak of the interveners in support of the appellants. Since the challenge of all these appeals is to the same impugned order of the learned single Judge they were heard analogously and are being disposed of together. The Post Graduate Medical Education Regulations, 2000 were framed by the Medical Council of India under section 33 of the Indian Medical Councils Act, 1956. The said Regulations aimed at laying down the rules and procedures of admission to various post-graduate courses, post graduate curriculum, selection of post-graduate students, duration of their training and a host of other subjects dealing with various aspects of post graduate medical teaching in India.

(2.) In 2009 new amending Regulations, Part III, were made by the said authority making certain additions, modifications, deletions, etc. in the Regulations of 2000 followed by further amending Regulations of 2010 whereby a proviso was added to Clause 9(2)(d) of the said Regulations which made provision for weightage in the marks as an incentive at the rate of 10 per cent. of the marks obtained for each year in service in remote or difficult areas as decided by the competent State authorities from time to time up to a maximum of 30 per cent. of the marks obtained in determining the merit at the entrance test for admission to the post graduate courses.

(3.) On November 23, 2011 the department of Health and Family Welfare, Government of West Bengal, had issued a notification which inter alia recited that the Government of India had identified and categorised eleven districts in the State of West Bengal as backward. It further mentioned that considering that backwardness, remoteness and difficult circumstances were strongly correlated, the State Government categorised eleven districts, as named in the said notification, as remote and difficult areas. In addition, the district of Coochbehar and the hill sub-divisions of the district of Darjeeling were also included in the said list in view of their remoteness and inaccessibility. The notification declared that with effect from the academic session commencing from 2012, 50 per cent. of the seats in post graduate diploma courses conducted by the West Bengal University of Health Sciences should be reserved for Medical Officers in the West Bengal Health Service and West Bengal Public Health cum- Administrative Service who had served for at least three years in those remote and difficult areas. The said notification further provided that in determining the merit at the entrance test for post graduate admission weightage in the marks would be given to officers borne in the cadres of the two services mentioned above as well as the West Bengal Medical Education Service as an incentive at the rate of 10 per cent. of the marks obtained for each completed year in service in the aforesaid remote and difficult areas up to a maximum of 30 per cent. of the marks obtained. This notification led to the filing of several writ petitions on various grounds such as the classification and categorisation of remote and difficult areas were unreasonable, arbitrary and irregular; the notification was not approved by the Executive Council and the General Council of the concerned University; the said notification was ultra vires the proviso to Articles 162 read with 154 and 14 of the Constitution of India and sections 32 and 33 of the Indian Medical Councils Act; it violated Articles 14 and 16 of the Constitution of India and created a class within a class; the notification betrayed patent discrimination on geographical lines; awarding marks by way of an incentive to candidates working in remote districts was unjust; and the notification caused discrimination with regard to caste, creed, colour and place of transfer, posting and the like. After hearing the learned Advocates appearing for the respective parties by an order dated January 19, 2012 the learned single Judge admitted the writ petitions and inter alia directed that until further orders the impugned notification dated November 23, 2011 would remain stayed after recording the Court s prima facie satisfaction that one of the points raised during the course of submissions which is to the effect that the notification, if applied, would amount to creating a class within class . The learned single Judge considered that it required consideration. It was, however, made clear that the order would, however, not stand in the way of the respondents from proceeding with the process of examinations subject to the final results thereof. The Court also passed directions for filing of affidavits-in-opposition and affidavits-in-reply. The writ petitions have been fixed as Specially Fixed Matters on March 15, 2012.