Anand Das Sharma (Dr.) and Others vs State of M.P.

Alok Aradhe, J.—With the consent of learned counsel for the parties, the matter is heard finally. In this petition the petitioners inter alia have challenged the validity of rule 9 (1) (a) of M.P. Medical and Dental Post Graduate Course Entrance Examination Rules, 2012 (in short ''the Rules''). The petitioners also seek quashment of the order dated 28.1.2012 (Annexure P-4) issued by the Commissioner, Health Services by which the petitioners who are working as Medical Officers on contract basis in Reproductive Child Health Programme have been excluded from the category of in-service candidate. The petitioners have also prayed for a direction to the respondents to make payment of stipend to them.. In order to appreciate the petitioners'' grievance reference to few facts is necessary which are stated infra.

The petitioners after completing their MBBS course joined the services in the State of Madhya Pradesh as medical officers in Reproductive Child Health Programme which is being run by the State Government. It is the case of the petitioners that they have served in rural areas for a period of five years and are eligible to be treated as in-service candidates. The petitioners submitted their application forms for Pre-P.G. Examination held in the year 2012 as in-service candidates. However, the Commissioner, Health Services issued an order dated 28.1.2012 by which the medical officers employed in Reproductive Child Health Programme were excluded from the category of in service candidates. In the aforesaid factual backdrop, the petitioners have visited this Court.

Learned counsel for the petitioners submitted that rule 2 (d) of the Rules describes ''in-service candidate'' to mean medical officer of the Government of Madhya Pradesh, who is serving under the Government of Madhya Pradesh on regular or contract basis. It is further submitted that rule 9 (1) (a) of the Rules is contradictory to rule 2 (d) of the Rules and is violative of Article 14 of the Constitution of India and, therefore, rule 9 (1) (a) of the Rules is liable to be struck down. In support of his submissions, learned counsel for the petitioners has placed reliance on a decision of the Supreme Court in A.I.I.M.S. Students Union Vs. A.I.I.M.S. and Others, and a decision of Division Bench of this Court in Shailu Mangal Vs. State of M.P. and Others,

On the other hand, learned Deputy Advocate General for the respondents while inviting the attention of this Court to rule 2 (d) has submitted that the petitioners are not medical offices of the State Government and, therefore, they cannot be treated as in-service candidate. It is further submitted that the petitioners are working under the Reproductive Child Health Programme which is a programme sponsored by the Central Government and substantially financed by the Central Government therefore, the petitioners cannot claim that they are working as medical officers of the State Government. Learned counsel for the interveners while supporting the submissions made by learned Deputy Advocate General, has invited the attention of this Court to the order dated 28.1.2012 passed by the Commissioner, Health Services and has submitted that the petitioners are not entitled to be treated as in-service candidates.

We have considered respective submissions made by learned counsel for the parties. Before proceeding further it would be appropriate to notice relevant provisions of the Rules. Rule 2 (d) of the Rules defines expression ''in-service'' candidate which reads as under:

2.. Definitions: In these rules, unless the context otherwise requires,-

(d) "In-Service Candidate" means, Medical officer of the Government of Madhya Pradesh, who is serving under the Government of Madhya Pradesh on regular or contract basis.

The relevant extract of Rule 9(1) of the Rules reads as under:

(1) Medical Officer

(a) Only those candidates, who are working as Medical Officers in the Department of Public Health and Family Welfare, Govt. of M.P. & who have completed 3 years of rural service on 30th April of year of examination as Medical Officer, or a candidate who is working consecutively as contractual medical officer in Department of Public Health & Family Welfare, Govt. of M.P. and has completed 3 years of rural service will be eligible as In-service candidate.

(b) Other in-services candidates who have completed 5 years of service by 30 April, 2012 will be eligible. Such candidates will have to execute a bond for serving the State Govt. in the notified rural areas for at least 5 years, after completing Post Graduate degree and 3 years for diploma course. As per Government Instruction the bond is Rs. 10.00 Lac. for post graduate degree and Rs. 8.00 Lac. for Post Graduate Diploma course.

If Rule 2 (d) and Rule 9 (1) (a) and (b) are read conjointly it is apparent that Rules contemplate two categories of medical officers, firstly, medical officers who are serving under the department of Public Health and Family Welfare of Government of M.P. and secondly, other in-service candidates who are working in rural areas. Rule 9 (1) (a) of the Rules deals with ''Medical Officer'' of the department of Public Health and Family Welfare of Government of M.P. whereas Rule 9 (1) (b) of the Rules deals with other in-service candidates and provides that other in-services candidates who have completed five years of service by 30th April, 2012 will be eligible to appear as in-service candidate. Such candidates will have to execute a bond for serving the State Government in the notified rural areas for at least five years after completing the post graduate degree and three years after completing post graduate diploma course. They are also required to execute a bond of Rs. 10.00 Lacs in respect of post graduate degree course and a bond of Rs. 8.00 lacs in respect of post graduate diploma course. Therefore, the submission made by learned counsel for the petitioners that Rule 9 (1) (a) is contrary to Rule 2 (d), cannot be accepted.

From the orders of appointment of the petitioners, it is apparent that the orders of appointment of the petitioners, on contract basis initially for a period of one year, were issued by the Chief Medical and Health Officer. The service conditions of the petitioners are governed by the M.P. Civil Services Conduct Rules, 1965. The petitioners have been posted in various primary health centres in rural areas under Reproductive Child Health Programme''. Thus, the petitioners are performing the duties as medical officer on contract basis in rural areas. The source of financing or sponsorship of the scheme under which the petitioners are engaged is not relevant and the same cannot be made the basis for not treating the petitioners as in-service candidates. However, only those petitioners who are medical officers under the Reproductive Child Health Programme and have served in rural areas for five years are entitled to be treated as in-service category candidates subject to their complying with the provisions of Rule 9 (1) (b) of the Rules. Learned counsel for the petitioners was unable to show any provision under which the petitioners are entitled to stipend therefore, the claim of the petitioners for stipend is rejected. The petitioners under the interim order passed by this Court have been granted provisional admission in various post graduate degree/ diploma courses it is, therefore, directed that the petitioners shall be allowed to continue in post graduate degree/diploma courses subject to their executing a bond for serving the State Government in the notified rural areas for at least five years after completing post graduate degree and three years after completing diploma course. The petitioners shall also execute a bond of Rs. 10.00 lacs for post graduate degree course or a bond of Rs. 8.00 lacs in case of post graduate diploma course, as the case may be. The aforesaid exercise shall be completed by the petitioners within a period of four weeks from today, failing which the admission of the petitioners to the course in question shall stand cancelled.

With the aforesaid directions, the writ petition is disposed of.