HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Special Appeal Writ No. 201/2022

Dr. Neha Choudhary Daughter Of Shri Ramdev Singh, Aged

About 28 Years, Resident Of Vpo Dhigat, Tehsil Nawalgarh,
District Jhunjhunu (Raj .)
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Medical
Education Department, Government Of Rajasthan,
Government Secretariat, Jaipur-302005.
2. The Principal Secretary, Medical And Health Department,
Government Secretariat, Jaipur.
3. The Director, Medical And Health Services, Swasthya
Bhawan, Tilak Marg, C-Scheme, Jaipur (Raj.)
4. The Chairman, Neet Pg Medical/ Dental 2021 Counseling
Board And Principal And Controller, Sms Medical College
And Group Of Affiliated Hospital, Jaipur.
5. Union Of India, Through The Secretary, Ministry Of Health
And Family Welfare, Nirman Bhawan, New Delhi.
6. National Medical Commission, Through Its Secretary,
Pocket-14, Sector-8, Dwarka, Phase-1St, New Delhi.
----Respondents

D.B. Special Appeal Writ No. 202/2022

Dr. Aditya Bhardawaj Son Of Shri Shiv Datt Bhardwaj, Aged

About 30 Years, Resident Of Jaipur Road, Ajeetgarh, Sikar
(Raj.)
----Appellant
Versus
1. State Of Rajasthan, Through Principal Secretary, Medical
Education Department, Government Of Rajasthan,
Government Secretariat, Jaipur-302005.
2. The Principal Secretary, Medical And Health Department,
Government Secretariat, Jaipur.
3. The Director, Medical And Health Services, Swasthya
Bhawan, Tilak Marg, C-Scheme, Jaipur (Raj.)

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4. The Chairman, Neet Pg Medical/ Dental 2021 Counseling

Board And Principal And Controller, Sms Medical College
And Group Of Affiliated Hospital, Jaipur.
5. Union Of India, Through The Secretary, Ministry Of
Health And Family Welfare, Nirman Bhawan, New Delhi.
6. National Medical Commission, Through Its Secretary,
Pocket-14, Sector-8, Dwarka, Phase-1St, New Delhi.
----Respondents

For Appellant(s) : Mr. Yash Pal Khileree with

Mr. D.S. Beniwal through V.C.
For Respondent(s) : Mr. Angad Mirdha
Mr. Harshal Tholia on behalf of
Dr. Vibhuti Bhushan Sharma(AAG)
through V.C.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

25/01/2022

1. These appeals arise of the common judgment of the learned

Single Judge dated 10.01.2022 in respective petitions. Issues

being similar we may notice facts from D.B. Civil Special Appeal

No.201/2022. This appeal is filed by the original petitioner No.9.

She along with other petitioners are the doctors serving in the

Rajasthan State services. They have been posted in remote or

difficult areas or rural areas. The State policy recognises graded

incentive marks for such doctors for the purpose of giving

admissions in postgraduate medical courses. Such experience has

to be reckoned as gained by them upto 30.09.2021 for the current

process of admissions in PG medical courses. They have dispute

with this cut off date. They contend that such cut off date should

be shifted to 31.10.2021. They therefore filed the writ petition in

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which the prayer made is to direct the respondent authorities to

consider their experience of service in Government hospitals till

31.10.2021. The learned Single Judge dismissed the writ petitions

upon which these appeals have been filed.

2. Learned counsel for the appellant submitted that in the

present year due to variety of reasons the process of admission in

PG medical courses has been delayed. Taking cognizance of such

delays the State Government itself has shifted the date for

considering experience from originally declared which was

30.04.2021 to 30.09.2021. The Government did not take into

consideration the fact that admission process has been further

delayed. Ideally the first date of counselling should be the date

upto which the experience should be seen. This was the past

practice. Ignoring such facts the State Government has refused to

extend the last date of 30.09.2021 for considering the experience

of in-service doctors. The learned Single Judge has committed an

error in dismissing the writ petitions.

3. Learned Government Advocate opposed the appeals

contending that it is the question of policy decision of the State

Government. The Government after due consideration decided to

extend the last date for considering the experience upto

30.09.2021. Thereafter there was no further reason to extend the

time. The petitioners have no vested right to insist that such

incentive must be granted upto the date of counselling. The

learned Single Judge has therefore rightly dismissed the petitions.

4. Learned counsel for National Medical Commission (NMC)

submitted that NMC has no direct role to play. He however

submitted that the additional marks being granted to in-service

doctors posted in remote areas is by way of incentives. The

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petitioners have no vested right to claim such incentive dehors the

Government policy.

5. The State Government has framed a policy for granting

incentive marks to in-service doctors posted in difficult, remote

and rural areas under which for every completed year of service

10% marks would be added in the tally of candidate scored in the

NEET examination with the ceiling of 30% marks weightage which

may be made available. In the past such policy was subject matter

of challenge before this Court and thereafter before the Supreme

Court. The Supreme Court in Special Leave to Appeal (C)

No.11692/2017-Dr. Amit Bagra and Ors. Vs. State of

Rajasthan and Ors., decided on 15.12.2017 while not

disapproving the policy for granting such incentive, was of the

opinion that the parameters applied by the State Government for

identifying such remote and difficult areas were not valid in law.

Consequently while disposing the appeal the Supreme Court held

that admissions made for the academic year in question would not

be disturbed. However by the end of February, 2018 the State

Government should consider the remote as well as difficult areas

considering the judgments mentioned in the order and the extent

of percentage of marks in terms of the regulations may also be

specified as may be considered appropriate.

6. We are informed that subsequently the State Government

has revived its policy and issued fresh regulations which currently

prevail. The Medical Council of India also has framed regulations

called Medical Council of India Postgraduate Medical Education

Regulations, 2000 (hereinafter to be referred as 'Regulations of

2000'). Regulation 9 of the said regulations prescribes the

procedure for selection of candidates for postgraduate courses.

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Sub Regulation (4) of Regulation 9 provides that an all India merit

list as well as State-wise merit list of the eligible candidates shall

be prepared on the basis of the marks obtained in National

Eligibility-cum-Entrance Test and candidates shall be admitted to

PG courses from the said merit lists only. Proviso to sub regulation

(4) reads as under:-

"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 in incentive
upto 10% of the marks obtained for each year of
service in remote and/or difficult areas or Rural
areas upto maximum of 30% of the marks obtained
in National Eligibility-cum-Entrance Test. The remote
and/or difficult areas or Rural areas shall be as
notified by State Government/Competent authority
from time to time."

7. As per this proviso while determining the merit of a

candidates who are in service of the Government or public

authority weightage of marks may be given by the Government or

the authority by way of incentive upto 10% of marks for each year

of service in remote and/or difficult areas or rural areas upto

maximum of 30% of the marks obtained in NEET. The remote,

difficult or rural areas shall be notified bythe State Government or

the competent authority.

8. As per sub-regulation 9 of Regulation 9 the admission

process would be organised in such a manner that teaching in

broad speciality PG courses would start from 1st May and for super

speciality courses from 1st August of every year.

9. We may record that the State Government issued a

notification dated 14.04.2020 under which in terms of the decision

of Supreme Court in the case of Dr. Amit Bagra (supra) the State

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specified the remote, difficult and rural areas as contained in the

said notification. This notification provided that such incentive

marks would be granted only to those serving doctors who have

completed minimum of one year of service as on 30.04.2020. This

notification also provides that the doctors serving in these areas

would be granted 10% incentive marks for every completed year

of service upto a maximum of 30% for the purpose of admission

in PG courses.

10. For the present year also the State Government has issued

similar notification dated 18.03.2021 in which also the cut off date

for the experience was prescribed as 30.04.2021.

11. The NEET PG examination for the year 2021 was to be held

on 18.04.2021 and the result thereof was to be declared on

31.05.2021. However the same was delayed on account of spread

of corona virus. Eventually the same was conducted on

11.09.2021. Even after the results were declared, the admission

process ran into legal controversies particularly with respect to the

reservations provided for various categories including economically

weaker sections. Due to pendency of proceedings before the

Supreme Court, the counselling processes were delayed.

Eventually recently the Supreme Court has cleared the decks by a

judgment dated 20.01.2022 in Writ Petition (C) No.967/2021-

Neil Aurelio Nunes and Ors. Vs. Union of India and Ors. On

account of the delays in admission process the State Government

on its own has issued a notification dated 08.01.2022 and revised

the date of 30.04.2021 to 30.09.2021 for the purpose of

reckoning the experience of in-house candidates. As a result the

State Government has started the counselling process for PG

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medical admissions. We are informed that the first phase of

counselling took place between 20.01.2022 to 24.01.2022.

Further phases are in the pipeline.

12. Before giving our own expression to the challenge made by

the petitioners we may notice that the learned Single Judge at the

Principal Seat at Jodhpur had passed an interim order dated

12.01.2022 in Writ Petition No.548/2022-Sahil Khan Vs.

State of Rajasthan by which the cut off date for considering the

experience was pushed to 20.01.2022. Against this interim order

of the learned Single Judge the State had preferred an appeal. The

Division Bench by an order dated 21.01.2022 had reversed the

said order and allowed the original petitioner to pursue the

pending writ petition.

13. We may also record as pointed out by the State counsel that

there are three groups of litigants. First set of candidates are

aggrieved by extension of date to 30.09.2021 under the

notification dated 08.01.2022. Such petitions are pending and we

clarify that we do not intend to touch on any aspects of the

challenge of these candidates. Second set of candidates had

approached the Court seeking extension of the cut off date and

are satisfied with the Government extending 30.09.2021. They

would have or would be withdrawing their petitions. The last set of

candidates like the present appellants-original petitioners are

those who seek the benefit of incentive marks but are not satisfied

with the extension of cut off date to 30.09.2021.

14. Having heard learned counsel for the parties and having

perused the documents on record we find that the policy to grant

incentive marks to in-house doctors serving in difficult, remote or

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rural areas has been framed by the State Government by virtue of

which for every completed year of service in such year 10%

weightage would be granted for the purpose of PG medical course.

This would be over and above the marks scored by the candidate

in NEET examination. Ordinarily such experience would be

considered upto 30th April of the relevant year. Initially in the

present admission process also the cut off date prescribed by the

State Government was 30.04.2021. However initially on account

of spread of corona virus the conducting of NEET examination

itself had to be postponed. The examination could be completed

only on 11.09.2021. Even thereafter the counselling could not

start on account of legal controversies regarding reservations

provided in PG medical courses. The State Government taking

cognizance of such developments has on its own extended the

time limit from 30.04.2021 to 30.09.2021. In our view the same is

principally a matter of policy and depends on the discretionary

exercise of powers of the State Government. To begin with grant

of incentive itself is a policy matter and based on the discretion of

State authorities. Any extension for considering the experience is

also part of such discretionary exercise of the powers. Unless it is

shown that such discretion is exercised arbitrarily or malafidely

this Court would not interfere in such policy matters.

15. Moreover, as correctly pointed out by the counsel for NMC,

the policy of the State is to grant incentive. No candidate has a

vested right to claim such incentives, that too dehors the State

policy. Such cut off date cannot be kept fluctuating. The date of

counselling would depend on several factors. The suggestion that

experience gained by the candidate right till the first date of

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counseling is therefore not acceptable. There is yet another angle

to this issue. The perusal of the State policy would show that the

incentive is granted to ensure that sufficient numbers of doctors

are available to serve in remote, difficult and rural areas. On

account of difficult living conditions in such areas these doctors

would also suffer a degree of handicap in their preparations of PG

medical entrance examinations. To offset such handicap incentive

is being offered. Once examination is over, the candidate cannot

complain of being disadvantaged in making the preparations as

compared to the other candidates. The cut off date of 30.09.2021

prescribed by the State Government therefore requires no

interference.

16. In the result, appeals are dismissed.

(SAMEER JAIN),J (AKIL KURESHI),CJ

KAMLESH KUMAR /s-1 & 2

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