AJEET BAGRA Vs. UNION OF INDIA

JUDGEMENT

(1.) Under challenge is the Notification dated 28.2.2018, whereby the State Government purporting to act pursuant to the judgment of the Apex Court in SLP No. 11692/2017 titled Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. decided on 15.12.2017 has notified "remote and / or difficult areas" in the proviso to Regulation 9(IV) of the Medical Council of India Postgraduate Medical Education Regulations, 2000 (hereafter 'Regulations of 2000') for grant of incentive marks to in-service Doctors while drawing of a merit list based on National Eligibility cum Entrance Test, 2018 (hereafter 'NEET 2018') for admissions into Post Graduate Diploma and Degree Courses in Medicine. The petitioners have submitted that the Notification dated 28.2.2018 is not compliant with the directions of the Apex Court to which it adverts, in-fact in its cross-hairs, contemptuous and also a colourable exercise of power by the State Government. Therefore it is liable to be quashed and set-aside.

(2.) The case of the petitioners is that having completed their MBBS Degree programme and eligible, they wrote the NEET, 2018 seeking admission to the courses of their choice in P.G. (Medical) and secured merit positions at the examination. They are all aggrieved of the Notification dated 28.2018 which the State has issued without due process and in complete disregard of the directions of the Apex Court in SLP No.11692/2017 titled Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. . It has been submitted that the State Government has not notified "remote and/or difficult areas" in the light of the said judgment whereunder it was under an obligation to adhere to the criterion and guideline of the Apex Court's judgments in the case of State of Haryana & Anr. Versus Dr. Narender Soni & Ors, (2017) AIR(Supreme Court) 2892 and State of Uttar Pradesh & Ors. Versus Dinesh Singh Chauhan, (2016) 9 SCC 749. In State of Haryana & Anr. Versus Dr. Narender Soni & Ors. the Apex Court had held that incentives under the proviso to Regulation 9(IV) of the Regulations of 2000 could only be granted if "remote and / or difficult areas" as referred to therein were rationally defined and categorized in a wholesome manner and founded upon detailed and objective studies / surveys of the concerned State. It has been submitted that the State is under an obligation to disclose the objective studies / surveys of the areas defined by it to be "remote and / or difficult" for the purposes of incentivizing in-service Doctors for admissions to Post Graduate Diploma / Degree Courses in Medicine. It has been submitted that in Dr. Narender Soni , the Apex Court carved out certain objective standards to identify remote and / or difficult areas. That inter-alia entailed identification of such areas with reference to (i) the difficulty posed by remoteness of a rural area; (ii) the difficulty posed by natural and social environmental factors; (iii) the difficulty a family would have in terms of housing, water, electricity and schooling; and (iv) the record of success of the system in filling up the post in the areas being declared "remote and / or difficult" in the past.

(3.) The petitioners submitted that the State Government was under the Apex Court's judgment to notify the "remote and / or difficult areas" in the State not only for the purposes of the proviso to Regulation 9(IV) of the Regulations of 2000, but also with reference to all other beneficial and welfare schemes in the State. That was not done. It was further submitted that under the impugned Notification dated 28.2.2018 1003 Nos. Primary Health Centres (PHCs) and Community Health Centres (CHCs) have been mechanically defined as "remote and / or difficult areas" only with reference to distances from the State Capital and the District Headquarters without regard to other relevant aspects adverted to in State of Haryana & Anr. Versus Dr. Narender Soni & Ors. such as difficulty of accessibility, difficulty posed by natural and social environmental factors and the record of success of the system in filling up the post of Medical Officers in such CHCs and PHCs in the past. It was submitted that the Notification dated 28.2.2018 is more blatantly in the cross-hair of the judgment of the Apex Court in the case of Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. , inasmuch as after identifying the purportedly remote and / or difficult areas with reference to their distance from the State Capital and District Headquarters alongwith reference to identified backward areas for availability of Medical and Health Care High Priority Districts - as notified by the Ministry of Health and Family Welfare, Government of India vide communication dated 28.12.2017, all in-service Doctors who have generally served in rural areas upto 30.4.2018 have also been conferred the benefit of the incentive under proviso to Regulation 9(IV) of the Regulations of 2000. It has been submitted that such extrapolation of 'rural' areas with remote and / or difficult area is wholly impermissible in terms of the judgments of the Apex Court in the case of Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. and State of Haryana and Another Versus Dr. Narender Soni and others . It was further submitted that the distance criteria alone adopted by the State Government in notifying the remote and / or difficult areas overlooks the fact of easy access to several of the PHCs, CHCs notified for the purposes of grant of incentive under proviso to Regulation 9(IV) of the Regulations of 2000 which are situate on National Highways, State Highways and other main roads in the State. Besides several of these are even located in towns having large populations with all modernity including that of education, medical facilities adequate water / electricity supply for an in-service doctor to sustain himself and family well. Resultantly, the impugned Notification dated 28.2.2018 albeit seeking legal pedigree in the judgment of the Apex Court in Dr. Amit Bagra is not only a colourable exercise of discretion by the State under the proviso to Regulation 9(IV) of the Regulations of 2000 but also a clear contempt of the directions of the Apex Court in the case of Dr. Amit Bagra & Ors. Versus State of Rajasthan & Ors. The Notification dated 28.2.2018 is thus wholly arbitrary and also illegal and liable to be quashed and setaside.