Dr. Darshana Gaira vs State of Uttarakhand & others

Petitioner has approached this Court seeking the following reliefs:

"i. Issue a writ, order or direction in the nature of certiorari quashing the order no. 441/XXVIII(1)/2007-150/2005 II cover T.C. dated 12.04.2017 (Annexed as Annexure No. 1 to the writ petition) whereby the Respondent No. 1 has taken a decision to not to grant 10% of marks for each of service in remote/ inaccessible areas as an incentive to P.D. Degree Course.

ii. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to strictly comply with Regulation 9(2)(d) of the Post Graduate Medical Education Regulations, 2000 and to accordingly grant the petitioner 10% of the marks obtained for each year in service in remote or difficult

areas, as an incentive while determining the merit and granting admission in Post Graduate Degree Courses in the ongoing admission process. "

Briefly put, the case of the petitioner is as follows:

Petitioner completed her MBBS in the year 2013 and internship in the year 2014. She was under a bond for serving the Government. Subsequently, it is the petitioner''s case that she was inducted into permanent service as Provincial Medical Health Services with effect from 18.04.2015.

H.N.B. Medical University started counseling in respect of admission to P.G. courses. According to the petitioner, she is entitled to the benefit of Regulation 9 framed by the Medical Council of India. The relevant proviso added by way of amendment reads as follows:

"Provided that in determining the merit of candidates who are in service of government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test. The remote and difficult areas shall be as defined by State Government/Competent Authority from time to time."

The petitioner approached this Court earlier by filing a writ petition and pursuant to the same,

Annexure No. 1 impugned order was passed. Therein, the respondent/Secretary, after referring to the proviso, has taken the view that there is no necessity for granting encouragement marks by the State Government. It is stated that the petitioner has executed a bond, who has availed discount in fees earlier. It is stated that this condition was not mentioned in the bond at the time of admission. There was no condition in the bond that at the time of admission in P.G. course, 10% weightage will be given to the students who have filled bond. Therefore, the petitioner cannot be provided again weightage of 10% discount in P.G. course.

Heard Mr. D.S. Patni and Mr. Piyush Garg, learned counsel for the petitioner, Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand and Mr. Parikshit Saini, learned counsel for the Medical Council of India.

Counter affidavit has been filed. Subsequent to the original appointment, which was made under a contract, there is no dispute that the petitioner was selected by the Public Service Commission and was given appointment and she joined in the year 2015. As far as serving the Government under a contract qualifying for the benefit under the Regulation is concerned, learned counsel for the petitioner does not establish before us any case and it is not being pressed before us. But what is being pressed before us is only the period of service after the petitioner joined pursuant to her selection by the Public Service Commission. Since, we are not exactly posted with the actual date, on which the petitioner joined service, we are not making any finding in regard to that and having regard to the course, we intend to adopt. As far as the service after joining pursuant to her selection by the Public Service Commission is concerned, this aspect has not received the attention of the Government Secretary. Apparently, the officer has proceeded on the basis that there is no provision in the bond, which the petitioner has indeed executed when she got admission for MBBS and which education she received under a concessional fee that she will serve for a certain number of years. It may be true that in the said bond there is no reference to availability of the benefit of the Regulation relating to marks at the rate of 10% of the marks obtained in the exam for each year, but the mere fact that it is not mentioned may not stand in the way of a candidate, who is an in- service candidate, working after getting regular selection claiming benefit. This will be different from a contractual employee claiming the benefit. As already noticed, petitioner has not pressed the argument relating to benefit of the Regulation based on contractual appointment. But after admittedly petitioner obtained appointment and joined, she could not have been denied the benefit. There is no dispute about the joining letter being issued on 18.04.2015. We also heard learned counsel for the Medical Council of India, who also took the stand that the Regulations are mandatory.

In the light of this, we cannot sustain Annexure No. 1 order. Annexure No. 1 is quashed. The first respondent will consider the matter afresh taking into account the period of service petitioner has, after she joined pursuant to the joining letter given on 18.04.2015 and consider her eligibility for the marks in terms of the proviso, which is already referred to in the impugned order. A decision in this regard will be taken as early as possible and at any rate within a period of 24 hours from today and the same will be immediately communicated to the sixth respondent, who will take action as per law. This we do, as we are informed that the second round of counseling is to take place day after tomorrow i.e. on 13.05.2017.

The writ petition is allowed as above.

Let certified copy of this order be issued today itself.