NEET-PG| Service In Specialized Units Doesn't Amount To Serving In Rural/ Difficult Area To Qualify For 40% In-Service Quota: Calcutta High Court

The Calcutta High Court on Tuesday observed that service in Specialized Units would not amount to serving in "remote and/or difficult areas" for the purpose of qualifying for the stipulated 40% in-service quota in Post Graduate Medical counselling for seats in Government/private colleges in West Bengal.

It may be noted that Supreme Court, in TN Medical Officers Association v. State of Tamil Nadu & Ors had paved the way for the State Governments to formulate a policy in relation to in-service doctors who seek admission through a separate channel of entry for postgraduate Medical courses

In accordance with the said judgment, the Department of Health and Family Welfare, West Bengal vide notification dated October 8, 2021 had introduced a reservation of 40% for the in- service doctors for post-graduate medical degree seats. The notification required in-service candidates to serve in "rural/remote/difficult areas" for a minimum period of three years.

Justice Moushumi Bhattacharya was adjudicating upon a plea moved by 53 graduate doctors who are serving as Medical Officers in different hospitals in the State and had contended that they should be eligible for availing the 40% in-service quota for presently serving in Specialized Units.

The Court acknowledged that the service rendered in Specialized Units like SNCU, HDU, CCU, ICCU and ITU is by no means an easy task and may require round-the-clock duties. However, the Court observed that to include such service within the definition of "rural and/or difficult areas" would amount to an interference with a policy decision of the State which is not permitted unless such a policy is capricious or arbitrary in nature.

Reliance was also placed on the Supreme Court decision in Balco Employees' Union (Regd.) v. Union of India and Others wherein the Apex Court had advised against embarking upon the uncharted ocean of public policy.

"This Court recognizes the commitment shown by the in-service doctors who render 24x7 service in these Specialized Units.However, to include service in such Specialized Units within the definition of "rural and/or difficult areas" would amount to making in-roads into the policy frame-work of the State Government which a Writ Court should normally hesitate to do unless compelling reasons exist. A policy decision is not a perpetual no-go area and a Writ Court can certainly interfere in fit cases including where the policy is not backed by legislative competence or where there is an excessive delegation of essential legislative functions or an infraction of the fundamental rights guaranteed under the Constitution of India", the Court enumerated further. 

The Court emphasised that bringing the petitioners who have served in Specialized Units within the fold of those who have served in remote or difficult areas would introduce a "discordant note" to the overall legislative policy in incentivizing service in far-out, distant areas.

It was further stated that even if the petitioners have done Covid-19 duty in excess of 1 year, they cannot use the service rendered in Specialized Units as a substitute for serving in rural/ remote/ difficult areas. This is because the geographical indication given to the definition of "remote/difficult areas" would also not be in consonance with service in Specialized Units which may or may not be located in or near the specific areas mentioned in the notification dated February 26, 2020.

Enumerating further on the interpretation of the expression "remote and/or difficult areas" as defined in Explanation II of the Notification dated February 26, 2020, the Court remarked, 

"The expressions "rural areas" and "remote and/or difficult areas" have been given a specific definition in the Notification dated 26th February, 2020 and are not open-ended terms. Hence the definition of rural or remote/difficult areas cannot be stretched or expanded at will to suit the needs of a particular group of doctors or any other persons for that matter..Even without the specifics of the definition given to "remote and / or difficult area" in the Notification, the expression indicates areas/places removed from the main cities and which would not be the preferred posting of doctors. The specific naming of the areas both under "rural areas" and "remote and/or difficult areas" in particular would lead to the inescapable conclusion that the 40% quota was being given as an incentive to those doctors who sacrifice the convenience of city-life and work in far-flung areas where life is otherwise difficult."
 

The Court further stated that the demarcated hilly areas under the Gorkhaland Territorial Administration, the Sundarban Unnayan Parshad, Paschimanchal Unnayan Parshad and Uttarbanga Unnayan Parshad in the notification dated February 26, 2020 contributes to the view that the 40 % in-service quota was given as an incentive to doctors who work in remote areas. 

Opining further on the overall objective of the State in implementing the in-service quota, the Court further remarked, 

"Service by the in-service doctors in rural/remote/difficult areas must be read as part of the overall objective of the State to extend the access, availability and benefits of medical services in areas which are not easily accessible and far removed from the metropolitan cities/developed areas."

It was further noted that a challenge to the definition of expressions such as "rural areas" and "remote and/or difficult areas" was dismissed by a Single Bench of this Court in Dr. Goutam Nemo v. State of West Bengal & Ors and subsequently by a Division Bench of this Court in Dr. Sourav Chattopadhyay & Ors. v. State of West Bengal & Ors.

Pertinently, the Court noted that no prejudice would be caused to the 53 petitioners due to the dismissal of the relief claimed. This is because they would only not be eligible to avail of the in-service quota of 40% for in-service doctors under the Memo dated April 18, 2013. However, they would have the opportunity to participate in the ongoing counselling process as open candidates i.e., candidates who are not in-service doctors. 

Background 

The petitioners had prayed for setting aside of an order dated January 3, 2022 issued by the Department of Health and Family Welfare and for a declaration that the petitioners are eligible for the in-service quota by dint of serving in Specialized Units in terms of a statutory amendment notified on January 21, 2016 by the Department of Health and Family Welfare, Government of West Bengal.

The expression "remote and/or difficult areas" has been defined in Explanation II of the Notification dated February 26, 2020 issued by the Department to mean and include (i) the hill areas under the provisions of the Gorkhaland Territorial Administration Act, 2011(ii) the Sundarbans; (iii) the areas under the Paschimanchal Unnayan Parshad and (iv) the areas under the Uttarbanga Unnayan Parshad.

Subsequently, the expression "rural/remote/difficult area" was again used by the Department in the impugned order dated January 3, 2022 by reiterating its stand that in order to avail of the in-service quota, the in-service candidates of the Department "shall have to serve in rural/ remote/difficult area for a minimum of three years as on 30th April of the academic year." Thereafter, another Memo dated January 25, 2022 yet again reiterated "difficult area" criterion for availing the in-service quota for in-service doctors but extended the boundaries of the definition of "difficult area" by including Covid-19 related duty as part of the eligibility criteria.

The concept of "Specialized Units" was enumerated only in the Amendment to the West Bengal Medical Education Service, West Bengal Health Service and West Bengal Health cum Administrative Service (Placement on Trainee Reserve) Rules, 2015 (2015 Rules) as notified on January 21, 2016. This Amendment brought in two additional provisos to Rule 3 of the 2015 Rules.

The Amendment notified on January 21, 2016 brought in a relaxation to the compulsory qualifying rural service in the case of Specialized Medical Officers who have been directly recruited through the Public Service Commission and appointed by the State Government in Specialized Units mentioned in the Amendment of January 21, 2016.

The petitioners' claimed that they have been included in the 2015 Rules which were notified in exercise of the power conferred under section 21 of the West Bengal State Health Service Act, 1990. However, it was alleged that they had been unfairly excluded in subsequent Notifications even though the criteria were relaxed for Covid- 19 duties by the subsequent notification of January 25, 2020. 

Case Title: Tania Mukherjee & Ors v. State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 36

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